Procedure, politics, prediction, and professors: a response to professors Burbank and Purcell.

• Author: Subrin, Stephen N.
• Position: Response to articles by Stephen B. Burbank and Edward A. Purcell, Jr., p. 1439, 1823

It is a daunting assignment to attempt to add something of merit to the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform. Their papers, (1) though, do suggest four themes to me, which I will comment upon briefly: (1) the relationship of substantive and procedural law; (2) the place of politics in procedural reform; (3) the difficulty of reliably predicting consequences of procedural reform; and (4) challenges that the Class Action Fairness Act of 2005 (CAFA) and similar reforms present for law professors, both in their roles as researchers and writers, and as teachers of would-be lawyers.

1. THE RELATIONSHIP OF SUBSTANTIVE AND PROCEDURAL LAW

   According to Professors Burbank and Purcell, CAFA demonstrates how that which is labeled procedural law impacts substantive rights. By way of comparison, some procedural reformers of the early twentieth century saw the relationship of procedural and substantive law quite differently. For instance, Thomas Shelton, one of the early and major proponents of the Rules Enabling Act of 1934, which authorized the Supreme Court to promulgate uniform federal rules of civil procedure, spoke of creating procedures that would step aside and let the merits of cases pass through unscathed. (2) He analogized procedure to a clean pipe, unclogged artery, clear viaduct, or bridge that channels substantive law without change. (3) This may be an admirable comparison, but it is an unrealistic one. Can we continue to pretend that the rules of pleading, discovery, summary judgment, or, as we have heard at this Symposium, jurisdiction, do not have an important bearing on substantive results, whether or not neutrality is attempted? It is not easy to find an accurate analogy. That is because many procedures, regardless of the motives behind their adoption, inevitably influence who brings suits, the value of settlement, and often the results at trial or by forced termination before trial.

   One problem is that metaphor does not capture the complexity and subtlety of what occurs in litigation and during the interplay of substance and process, and through the unavoidable interaction with many other variables. The litigation process includes an extremely complex interplay of laws attempting to influence prelitigation behavior; procedural rules and statutes, which often have their own independent and competing goals (such as efficiency and community participation); parties who decide to sue; evidence law (with its many policy compromises in excluding relevant evidence); facts of the case (known, distorted, and unknown); quality of lawyers; luck of the draw of jurors and judges; the education, experience, skills, and values of judges; local culture; strategic choices made by lawyers and their clients; and, undoubtedly, many other variables of which we may be only dimly aware. This means, of course, that CAFA will impact results, and will interact with the variables I have listed in subtle and not-so-subtle ways.

   One implication of the impact of many, if not most, procedural rules on substantive results is that the Rules Enabling Act, which mandates that the procedural rules promulgated pursuant thereto "not abridge, enlarge or modify any substantive right," (4) looks even more baffling today. (5) Many provisions of the Federal Rules that we assume are procedural--pleading, discovery, and summary judgment rules for instance--do in fact "abridge, enlarge or modify ... substantive right[s]" in the sense that they materially affect who wins and loses. We are now so aware of the "predictable and identifiable" effect on primary rights--Professor Burbank's brilliant attempt at finding a dividing line embedded in the Act's history (6)--of such matters as pleading requirements, Rule 11, the amount of discovery, and summary judgment rules (especially when combined with the impact of Daubert (7)), that much procedure looks quite substantive in application. One way around this dilemma is to let the legislature make procedural rules. David Dudley Field (8) and Senator Thomas Walsh (9) (who fought the Rules Enabling Act) thought this appropriate in a democracy. But CAFA does not give one much confidence in Congress as a careful and balanced enactor of procedural law.

2. POLITICS AND PROCEDURE

   A second implication of Professors Burbank's and Purcell's papers is that issues of allocation of power, as well as politics designed to achieve shifts in power, have played and continue to play a significant role in what is called procedural reform. Fights over diversity jurisdiction, removal, and vertical choice of law issues frequently seem to have had a political component, while at the same time the advocates spoke of federalism and fairness. (10) The passage of the Rules Enabling Act was the result of over three decades of dogged political fights, which until the end of the battle had Democrats and Republicans lined up on opposite sides. (11) There was intense disagreement as to whether what was perceived by many as a very conservative, pro-business Supreme Court was the appropriate forum for procedural rulemaking.

   But I think it is important to realize that the picture Professors Burbank and Purcell have painted does not necessarily show politics as usual if we compare it with other procedural reform efforts. It is true, as Professor Purcell so skillfully displayed, that in the debates over procedural reform--in this case, debates about diversity jurisdiction--it is not unusual for both...