Symposium Reflections: a Rulemaking Perspective - Edward H. Cooper

• Citation: Vol. 57 No. 3
• Publication year: 2006

Symposium Reflections: A Rulemaking Perspectiveby Edward H. Cooper^*

These reflections seek to situate this most excellent Symposium in the rulemaking process. All contributors are working with an eye to that process. Their goal is to achieve a better understanding of how offer-of-judgment rules actually work in practice. The major focus is on Rule 68 of the Federal Rules of Civil Procedure¹ as it has affected practice in actions brought under fee-shifting statutes, but Professor Yoon's article² adds insights into state practice in the very different world of automobile accident claims. There is no reason to attempt to summarize or synthesize the papers or discussions that stand so well on their own. Taken together, they illustrate many ways in which Rule 68 might be revised. Rule revision, however, is not an easy task. Among the many barriers to rule revision, three will be described here in relation to Rule 68. Any proposed amendment must overcome the inertia that protects against the costs of continual tinkering and the risks of mistaken innovation. Some proposals, and many Rule 68 proposals are prominent among them, also test the uncertain line between "general rules [of] practice and procedure" and rules that improperly "abridge, enlarge[,] or modify any substantive right."³ Finally, if revisions are to be made, just how far to push toward detailed dictates for every foreseeable problem remains to be decided.

I. Rulemaking Inertia

A. The Burdens of Rule Changes

The Rules Enabling Act⁴ assigns to the United States Supreme Court "the power to prescribe general rules of practice and procedure . . . for cases in the United States district courts. . . ."⁵ The ordinary process for exercising this power begins with detailed consideration in the Advisory Committee on the Federal Rules of Civil Procedure. The Advisory Committee is one of five advisory committees that report to the Standing Committee on Rules of Practice and Procedure.⁶ if the Standing Committee approves an advisory committee recommendation, the proposed amendment or new rule is published for public comment. Ordinarily, the comment period runs for six months and includes one or more public hearings. Following the comment period, the advisory committee considers the comments and decides whether to recommend further work, adopt the proposal as improved in light of the comments, or abandon the effort.

When adoption is proposed, the Standing Committee again reviews the proposal. The Standing Committee may recommend the proposal for adoption, perhaps with some changes; send the proposal back to the advisory committee for further work; or abandon the effort. When the Standing Committee recommends adoption, the rule goes to the Judicial Conference of the United States, which is charged by statute with the duty to carry on a continuous study of Enabling Act rules and to recommend "changes in and additions to those rules" to the Supreme Court.⁷ Finally, the Supreme Court considers the proposal. if the Supreme Court adopts a proposal, the Court sends the rule to Congress "not later than May 1 of the year in which [the] rule . . . is to become effective"; the rule takes effect the following December 1 "unless otherwise provided by law."⁸

A relatively simple rule proposal may travel through this procedure in three years. More complex or potentially controversial proposals may require several more years. The process is long, drawn-out, and painstaking by deliberate design. The design is a good thing. But, the cost of such elaborate work is itself a reason for care in selecting rules amendments.

The work accompanying a rule amendment begins with the process for formal adoption. A large amount of work is involved in implementing any rule change. Lawyers and judges must learn about the new rule, and they must come to understand it. Once they understand the new rule, they must learn how to use it. Some new rules are easy to use and offer few opportunities for misuse. Other new rules are deliberately framed to rely on district court discretion, often because the drafters know that they cannot do more than provide a general sense of direction for approaching multifaceted and often difficult tasks. Discretion transfers part of the rulemaking responsibility from the formal Enabling Act process to the lawyers and judges charged with implementing the discretion. in the process, lawyers who fully understand what the rule is intended to do will attempt to bend the rule to partisan advantage. Any rule change must be justified by a strong showing that the long-term benefits will outweigh the short-term costs of implementation and the risks of general misunderstanding or even perversion.

The costs of rule changes are regularly reflected in laments by practicing lawyers and judges, which suggests that rule changes are adopted too regularly. The most modest suggestion is that lawyers should not be responsible for nervously searching out new rules on the first of every December. Instead, the Supreme Court should adopt rule changes in larger sets once every few years. More agonized suggestions advise that it would be wise to suspend the process for a while, perhaps five years, to provide the legal community with an opportunity to digest all the changes that have been made in recent years. The rules committees are sensitive to these complaints and have taken the complaints more seriously than the constant flow of amendments indicate. The possibility of taking a holiday from rulemaking is actually discussed from time to time, at least informally, but the constant flow of proposals to address troubling issues—both large and small—is difficult to ignore. Still, many worthy suggestions in fact are put aside to stem the tide of actual changes. To result in actual change, a proposal must be more than just good to win a place on the active agenda of amendments.

B. The Risks of Mistake

The risk of getting it wrong is an additional reason for caution in proposing amendments. The more important and sensitive the issues concerning a particular proposal, the greater the need for confidence in the outcome.

Actual experience with formal rules in practice provides the safest foundation for rules changes. The experience may arise from state court rules, from local district rules, or from practice developed from interpreting the framework of existing national rules. Generally, it is impossible to study this experience with all the rigor of an experiment in social science, although studies such as Professor Yoon's work with the New Jersey offer-of-judgment rule illustrate the possibilities of formal methodology. Often, the experience must be gleaned by less formal methods. The carefully framed and widespread interview study by Professors Lewis and Eaton is a fine illustration of one good method.⁹ The Federal Judicial Center which, among other roles, is the research arm of the judiciary, frequently undertakes specific research tasks for the advisory committees. One of its projects was a Rule 68 survey study conducted for the Civil Rules Committee.¹⁰

Theory may help to fill in gaps left by evidence of experience, whether the evidence be measured by rigorous methodology, less rigorous conferences, informal discussions with judges and practicing lawyers, or comments and testimony on rules published on the way to deciding how to act on a specific proposal. But only the strongest theory, or the greatest need, can support action when the lessons of experience are dim, confused, or seriously contested. Additionally, if theory is itself confused there is great risk in making rules changes that lack strong support in experience.

The most recent focused consideration of Rule 68 in the advisory committee process was initiated by Judge Schwarzer's proposal for adding force to a formal Rule 68 offer by adopting a capped benefit-of-the-judgment fee-shifting sanction.¹¹ Even with this persuasive theoretical prompt, and with the further support of the Federal Judicial Center survey, initial consideration of a draft rule raised significant doubts about the wisdom of amending Rule 68 without a better understanding of the ways in which an amended rule might work.

Traditionally, it was believed that Rule 68 offers were seldom made outside the purview of actions in which a prevailing plaintiff's failure to beat a rejected offer at trial cut off a statutory right to post-offer attorney fees. it later came to be understood that Rule 68 offers are not often made even when the prize is the reduction of a losing defendant's liability for the prevailing plaintiff's attorney fees. Then there was great puzzlement as to the infrequent use of Rule 68 offers in fee-shifting cases. Also, growing from the lack of any significant experience outside fee-shifting cases, there was still greater puzzlement as to what uses might be made of a reinvigorated offer-of-judgment procedure. These uncertainties were compounded, at least for some committee members, by doubts about the desirability of the interpretation that made Rule 68 a tool for reducing statutory fee liabilities. A few committee members wondered whether it might be better to repeal Rule 68 entirely. The upshot was to leave Rule 68 for further consideration in the indefinite future.¹² independent suggestions continue to be made that Rule 68 should be amended to give it sharper "teeth." Despite the advances made by this Symposium and the underlying work, the question remains whether enough is known, in fact and in theory, to warrant venturing into the risky world of proposing amendments. Addressing this question requires consideration of two further sets of questions. The first set asks whether we need still greater encouragement or pressure to settle, and whether the Rules Enabling Act process is the best means to respond to any perceived need. The second set asks whether a satisfactory rule can in fact be drafted with reasonable assurance that the results will be...