Management

• Pages: 197-216
• Author: Samuel Issacharoff

197

Chapter 8

MANAGEMENT

I. The Managerial Turn in Judging

The world of procedure draws a divide between “inquisitorial”

and “adjudicative” courts. The “inquisitorial” model prevails in the

civil law processes of Europe and in countries whose legal system

draws from Roman law. In this mod el, judges are expected to

shoulder active responsibility for investigation and development of

the case. Underlying this approach is the assumption that judges

must be given the ability to focus the litigation process from the early

investigative stages to the actual examination of witnesses at trial.

By contrast, the “adjudicative” model of Anglo-American common law

systems assumes a triadic division of responsibility between two

adversaries and a judge weighing what is put before her. The

adjudicative model sees the j udge as a passive re cipient of

information and arguments provided by the various parties, who

themselves bear primary responsibility for case inve stigation and

development. The assumption here is that the parties have the

incentive and the authority to control litigation, including

expenditures, in pursuit of their private objectives, and that the

court’s job is to facilitate this.

There are other significant differences between the two systems.

To take just one important example, no civil law countries use juries

for non-criminal cases. Because of this, cases may be presented to the

court in rolling fashion, allowing information to be acquired or

discovered as it proves necessary. In some civil law countries, such

as Italy, the acquisition and introd uction of new information may

even continue into the appeal. In American procedure, however, this

type of rolling discovery is not possible. The focus of litigation, should

there be no pre-trial disposition or settlement, is on a fixed trial of all

the evidence. The evidentiary resolution is meant to take place either

before a jury or, per Rule 52, in a dispositive ruling by the court. All

trial findings of fact, whether by a jury or by a court, are entitled to

substantial deference on appeal and may n ot be se t aside unles s

“clearly erroneous,” to use the language of Rule 52.

Despite the extensive literature detailing the diff erences

between inquisitorial and adjudicative litigation models, the growing

wisdom is that there is actually a great deal of convergence between

the two. Notwithstanding the finality of trial in the American system,

there have been great revisions in the presumed judicial passivity in

the face of litigation, which have turned American judge s into

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MANAGEMENT

Ch. 8

centrally active participants in the process. Correspondingly, the

effects of globalization and increased cross -border transactions have

led civil law systems to become more accustomed and more receptive

to elements of adversarial control in the litigation process.

As we have seen, the 1938 Rules took the first steps in the

direction of more direct engagement of courts in the d ispute

resolution process. The key deve lopment came with Rule 26 and the

rest of the discovery provisions, which provided that information

would be gathered under the aegis of the courts. The introduction of

the discovery rules began the process of easing the presumed passive

role of the court as dispassionate arbiter of whatever the parties

might present. But while the new discovery rules allowed judges a

slightly more active role in the process of framing the factual

predicates of the dispute, it still left them in a relatively passive role

overall: they would not act absent a party request for some form of

intervention through the filing of a motion. Thus, as originally

formulated, Rule 26 still did not allow judge s actively to shape or to

limit the discovery process absent extraordinary events and the

request for judicial relief.

This began to change officially in 1983, with the adoption o f a

systematic serie s of reforms to the Federal Rules intended to

encourage what Professor Judith Resnik has termed “managerial

judging.”

1

First and foremost, the 1983 reforms sought to give courts

a greater role in the shaping of the dispute. This approach, while still

different from the ongoing supervisory power of inquisitorial civil law

courts, unmistakably moved American courts in that direction. We

have seen some evidence of this already in the earli er discussions of

the summary judgme nt trilogy from 1986 and the subsequent

ramping up of the scope of judicial review of the factual plausibility

of a claim at the motion to dismiss stage, both of which heralded a

greater judicial role in screening the factual bases of a case for trial.

These case developments were, in fact, influenced by the same ideas

that spurr ed the 1983 reforms. Underlying all these developments

was the gro wing recognition that a declining percentage —less than

one percent at present—of cases actual ly go to trial and that

meaningful management of litigation requires judicial participation

in all phases of the litigation process, including the power to create

incentives toward settlement.

A clear example of the new direction paved by the 1983 reforms

was the wholesale revision of Rule 16, the title of which was changed

from “Pre-Trial Procedure, Formulating Issues” to “Pretrial

Conferences; Scheduling; Management.” Prior to 1983, the limited

managerial role of the court involved only the actual trial of a case:

1

Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).