RULEMAKING'S SECOND FOUNDING.

• Author: Marcus, Richard

INTRODUCTION 2519 I. THE FIRST FOUNDING 2520 II. THE PROCEDURAL FRUITS OF THE FIRST FOUNDING 2523 III. THE SECOND FOUNDING 2527 IV. LIFE AFTER THE SECOND FOUNDING: RULEMAKING IN THE FISHBOWL 2532 A. Did The 1988 Act Actually Cause A Rulemaking Change? 2534 B. Sunshine, Lobbyists And Outreach 2535 C. Empiricism 2539 D. Operating in The Subcommittee Mode 2542 E. A Possible Downside--Stickiness 2545 F. The Alternative Route Through Congress 2547 CONCLUSION 2549 INTRODUCTION

This Essay takes its title from Professor Eric Foner's 2019 Pulitzer Prize winning book The Second Founding. (1) Foner's book traces the development and adoption of the thirteenth, fourteenth, and fifteenth Amendments and the ensuing Reconstruction experience that endured until the election of 1876, a brief period that seemed to permit something approaching equality (at least for men) in the South. In that sense, these political developments could have amounted to a "second founding" to build on and move beyond the Revolutionary War and original adoption of the Constitution. As we all know too well today, that promise was extinguished around 1877, and during the rest of the 19th century the nation instead saw the rise of Jim Crow laws, paramilitary domestic terrorism managed by groups like the Ku Klux Klan, and stasis for at least three quarters of a century in racial justice. Indeed, as recent events in this country show, that stasis has not been left entirely behind.

But my focus in on much less weighty matters and uses Professor Foner's title as a theme to address one of the (many) great accomplishments of Professor Burbank's storied career--his role in the 1988 amendments to the Rules Enabling Act. No sensible person could contend that the 1934 adoption of the Enabling Act comes close to having significance similar to the founding of the nation. At least for those in the civil procedure fraternity, however, it is not so fanciful to regard the 1988 legislation as something of a second founding in rulemaking for the federal courts. That is my theme.

Appreciating the significance of that 1988 effort requires some excavation of the background and nature of the first founding for rulemaking, the fruits of that founding, and the travails that led to the second founding in the 1980s. Finally, drawing on almost a quarter century of experience from inside the rulemaking apparatus, I will reflect on the impact of rulemaking's second founding. On the whole, that reflection shows more immediate and sustained impact than Professor Foner's second founding provided. It also shows that the impact was mainly positive.

1. THE FIRST FOUNDING

   Professor Burbank is the preeminent scholar on the first founding--the 1934 adoption of the Rules Enabling Act--beginning with his seminal book-length article in this Review. (2) But for present purposes, it is useful to go beyond invoking that work and add some background details.

   Though it did immediately take up the Constitution's invitation to create lower federal courts, Congress did not try to regulate their procedure, and instead--through the Process Acts and later the Conformity Act--directed generally that the federal courts should adhere to the procedures of the courts of the states in which they sat. (3) That often was common law procedure, for the English courts had proceeded for centuries without a procedure code. But the English reliance on case law to devise procedures gradually grew burdensome, and the English judges adopted the first rules of court to have the force of law in the Anglo-American sphere--the 1834 Rules at Hilary Term. (4)

   The English effort at positivist court-based rulemaking was an abject failure, leading to the infamous Crogate's Case, which was satirized in the Dialogue in the Shades. (5) This failure was followed by what Professor Sunderland described as the "English Struggle for Procedural Reform." (6) That struggle led to the adoption in the Victorian era of the Judicature Acts, which sought to modernize and improve court procedure, and to put procedure "under public, not professional, regulation." (7)

   In this country, David Dudley Field embarked on a codification movement designed to supplant court-made common law jurisprudence with legislative provisions in a range of areas. (8) His greatest success was with a procedure code, leading, among other things, to the adoption of what came to be called "code pleading." Through legislation, many states adopted the Field Code for their procedural regime; under the Process Acts and the Conformity Act, that code would apply in the federal courts of those states as well.

   Though some regard the Field Code as a precursor to the Federal Rules, that conclusion may be challenged. (9) But the codification movement did supplant judicial rulemaking in many states, particularly in the West. (10) As time went by, however, the bloom came off that rose:

   The early promise of the code movement began to sour as successive legislatures, in response to the importuning of special interest groups, added layer upon layer of amendments to the code. Legislatures sought to regulate every detail of court activity and to remedy procedural problems on a piecemeal and patchwork basis. In New York, the Field Code turned into the Throop Code, and grew "from 88 sections to over 1000, making it a legal text of truly Byzantine complexity, a stellar trap for the unwary, and a source of mischief to hapless litigants." California's code has suffered a similar fate. (11) To those conversant with local practice, however arcane, it may have been a great relief not to have to worry about a different set of rules to go to federal court. And it was probably attractive to them to be able to outmaneuver their opponents if the opponents were not equally steeped in local procedure. But as the national economy became more and more integrated, and communication and transportation improved, in the late nineteenth century, disparities in court procedure among federal courts could cause frustration as well. (12) At the same time, some inveighed against the tendency toward "gamesmanship" in litigation (perhaps also exploiting local procedure), an attitude at the heart of Pound's famous 1906 address to the American Bar Association. (13)

   There followed about twenty years of effort to supplant local practice with a national procedural code for the federal courts. (14) On occasion, this effort was leavened by bombast, such as the assertion that it would be a way to avoid "Bolshevism." (15) For some, opposition had a more proprietary tone, as in this objection to the effort to achieve uniform procedure:

   [A] firm in a great city may represent a railroad, or an industrial company doing business in many states[;] if the procedure in the Federal Court is uniform this city firm can, itself, conduct the main parts of the litigation and reduce the local lawyers substantially to filing clerks and advisors on jurors. Uniformity, therefore, increases the influence and importance of the great city firm.... Uniformity would further augment the importance of large aggregations of men and depress the individual.... (16) In Congress, the most vigorous opponent to nationalized procedure was Senator Walsh of Montana. When President Roosevelt selected him to be Attorney General, this seemingly sunk the project for national rules. But Walsh died on his way to Roosevelt's inauguration, and Homer Cummings (a supporter of the Enabling Act) instead became Attorney General. Thus, the first founding depended ultimately on a fortuity.

2. THE PROCEDURAL FRUITS OF THE FIRST FOUNDING

   Much as the passage of the Rules Enabling Act was a breakthrough, it was a breakthrough with a vacuum at its center. There was almost nothing to show what should be included in the national procedural rules that would supplant state court procedure. The Act said the Supreme Court could promulgate a new procedure code, but it did not say how the Court was to accomplish that. The Court surely did not intend to try to draft the new code itself. After some uneven starts, the Court appointed an Advisory Committee of leading lawyers, with Dean Charles Clark of Yale Law School as Reporter. Since Dean Clark had a treatise on procedure, (17) that might seem to fill in some of the gaps on what might be included in the code (though not, of course, at the time Congress passed the Enabling Act). And Professor Sunderland was enlisted to address rules for pretrial, particularly discovery. He had already carved out pro-discovery positions that might suggest his later orientation. (18) In all, the drafting committee included a number of very prominent lawyers and several law professors, but no judges. Withal, it did not seem a revolutionary group.

   Particularly when measured against current rulemaking time lines, the work of this drafting committee was extraordinary. In about two years, the committee hammered out an entire set of rules. In the process, it made some basic decisions. As Professor Subrin explained, it elected the elastic, open-ended approach of the Courts of Equity rather than the constricting attitudes of the common law courts. (19) In place of the strictures of common law pleading and of "fact pleading" as required by the codes, it directed only that a complaint contain "a short and plain statement of the claim, showing that the pleader is entitled to relief." (20) Altogether, the discovery package included more discovery methods, with fewer limitations, than any prior set of procedures. It was revolutionary. (21) That might have been surmised from the profile Sunderland already had on the subject. (22) As Charles Clark put it more than two decades later: "The system thus envisioned by Sunderland had no counterpart at the time he proposed it." (23)

   For present purposes, an important point is that none of these orientations was intrinsic in the legislation itself. Congress did not debate or even consider seriously what should go into...