AuthorMarcus, David
  1. THE CONDITIONS OF SUBSTANTIVE NEUTRALITY: 1983 AND 1966 2489 A. The Principles of Rulemaker Primacy and Substantive 2489 Neutrality B. Substantive Neutrality and the 1983 Generation 2490 C. Substantive Neutrality and the 1966 Generation 2492 II. THE FEDERAL RULES SYSTEM AFTER ITS COLLAPSE 2498 A. Delegation 2499 B. Acquiescence 2501 C. Irrelevence 2504 III. TOWARD A NEW PRINCIPLE 2510 A. The Principle of Neoliberalism 2510 B. An Equality Principle 2513 CONCLUSION 2517 A prominent federal judge who knows the field well suggested that I immerse myself in Steve Burbank's work when I started as a civil procedure scholar and teacher. "Burbank could have dined out his whole career on the Enabling Act history alone," I recall the judge telling me. This advice was sound for reasons that went well beyond scholarly inspiration. The judge's advice prompted me to send Professor Burbank an e-mail asking for feedback on one of my first articles. I had hoped for just enough of a response to warrant including his name in the article's acknowledgments. I could never have imagined all that followed. Professor Burbank has given me years of generous, undeserved mentorship. By his example, he has shown me time and again how a revered colleague draws on a rich reservoir of professional capital to build a national community of scholars. His guidance and friendship have enriched my career beyond measure. I am deeply honored to contribute to this Festschrift.

    Professor Burbank's scholarship grapples with nearly every aspect of what I call the "Federal Rules System." This is the dominant procedural system for American civil justice, one taught in virtually every American law school's first-year civil procedure course. (1) Although the Federal Rules of Civil Procedure and their use in the federal courts lie at the system's center, it includes much more. Importantly, the Federal Rules System, by my definition of the term, embraces the procedural regimes of many American jurisdictions. (2) They share many of the system's constituent components, particularly a trans-substantive default architecture for civil litigation. (3) These components also include the assignment of a procedural regime's maintenance, at least in part, to court-supervised experts working outside the political process and under judicial supervision. (4) They also involve a set of cultural expectations about litigation, particularly its adversarial and party-driven nature. (5)

    Professor Burbank wrote the canonical history of the Federal Rules System's origins. (6) He has subjected nearly every aspect to influential theoretical, doctrinal, and empirical scrutiny. (7) He has played central roles in the system's evolution. (8) Immersion in Professor Burbank's work that this Festschrift occasioned thus invites immodestly broad claims. I marshal a lot of Professor Burbank's scholarship to support mine. With apologies, (9) here it is: the Federal Rules System has collapsed.

    The erosion of the system's two core pillars has triggered this collapse. (10) The first, the principle of rulemaker primacy, steered primary responsibility for procedural change and reform to an apolitical rulemaking process. The second core pillar, the principle of substantive neutrality, legitimated the principle of rulemaker primacy. If meaningful procedural change can proceed without ideologically-fraught regulatory or distributive consequences, then it can take place outside politics. Over the past fifty years, the domain of what could plausibly pass muster as substantively neutral has shrunk considerably. As a result, rulemaker primacy has become increasingly impossible to sustain. Power over meaningful procedural change has passed to other institutions, hollowing out the Federal Rules System.

    To anyone conversant in bitter procedural battles of the past twenty years, the question is not so much whether the Federal Rules System has indeed suffered. Rather, how did a procedural system dependent on a claim of substantive neutrality ever operate in the first place? (11) This question's answer helps identify the cause of decline. I provide one in Part I. The key moment is 1966. Rule 23 came into effect that year, generating the modern class action. The class action's vast regulatory and distributional consequences make this landmark reform, exemplifying the principle of rulemaker primacy, unthinkable today. What made it possible was the "postwar liberal consensus," a period during which American elites believed in and advocated for universal agreement on political, economic, and social fundamentals. (12) Meaningful procedural change could come from the rulemaking process without violating the principle of substantive neutrality, because everyone--or everyone who "mattered"--agreed on the substance.

    Since 1966, conditions of consensus have yielded to conditions of polarization and inequality. The domain of substantive neutrality has shrunk dramatically, eroding the basis for rulemaker primacy and leaving rulemakers able to generate mostly technocratic adjustments to settled practice. (13) I describe the consequences for the Federal Rules System in Part II. Its hallmarks now include delegation and acquiescence, as rulemakers yield their power, and irrelevance, as the needs of American civil justice exceed the system's capacity to address them.

    The Federal Rules System left Camelot long ago, as others have argued for decades. (14) But my diagnosis of collapse differs from previous diagnoses of decline. The latter hold the promise of reversal--if the system can just produce better rules, (15) for instance, or if some new source of legitimacy can rejuvenate it. (16) With the system's core principles eroded, I believe it is time to move on, to identify new principles for a new system. The conditions that triggered the Federal Rules System's collapse make the choice unavoidably political. The conservative legal movement has already fashioned what I term the principle of neoliberalism to guide its preferred path for procedural evolution. (17) I end by introducing how progressives might craft an alternative, a principle rooted in a conception of equality meaningfully responsive to some of the inequities that have ended the Federal Rules System.

    To be clear, the causal story I tell here does not assign blame to any particular institution. Rulemakers and courts deserve scrutiny for the choices they make, to be sure. If I am right, however, deeper currents in American political, social, and economic life have largely determined possibilities for the evolution of procedural doctrine. The appreciation that procedure necessarily mirrors the conditions of American political culture makes the recognition of a new principle all the more urgent.


    1. The Principles of Rulemaker Primacy and Substantive Neutrality

      Originating in 1938, the Federal Rules System centers around the Federal Rules of Civil Procedure and the apolitical rulemaking process the Rules Enabling Act of 1934 created. (18) The Federal Civil Rules Advisory Committee, a group of experts appointed by the Chief Justice and ultimately supervised by the Supreme Court, dominates this process. But the system includes more than a set of rules and a core institution or their state equivalents. It also encompasses a litigation culture, one embodied in the procedural systems of almost every state. The basic architecture for a civil lawsuit the Federal Rules establish provides the default norm for what adjudication looks like--an architecture premised on adversarial, party-driven litigation activity. (19) Participants in the system conceive of procedural problems and possible solutions in terms of rules and possible reforms.

      The twin pillars on which this system rested reflect two of the "foundational assumptions" Professor Burbank has identified for "modern American procedure." (20) The first, echoed by the principle of rulemaker primacy, assumes that "once made through 'The Enabling Act Process,' [the Federal Rules] can only be changed through that process (or by legislation)." (21)

      The principle of substantive neutrality follows from the second, that "the 'general rules' required by the 1934 Rules Enabling Act should not only be uniformly applicable in all federal district courts, but uniformly applicable in all types of cases...." (22) The Federal Rules' trans-substantivity honors this assumption. This design feature prevents rules from serving or disserving particular ends of substantive justice. Trans-substantive rules therefore claim value-neutrality, a quality that honors limits on the scope of power delegated to the rulemaking process. (23) As Professor Burbank's canonical history of the Enabling Act reveals, Congress intended to retain control over procedural lawmaking "where the choice among legal prescriptions would have a predictable and identifiable effect on... rights" "recognized by federal or state substantive law... and interests recognized by the Constitution." (24) Otherwise, rulemaker primacy prevailed.

      The principle of substantive neutrality both defined the domain within which the principle of rulemaker primacy could operate, and it gave the institutional preference the latter principle conveys essential normative support. (25) An expert-driven process outside of politics could exercise power over procedural change legitimately if this change did not entail choices of substantive value. (26) By contrast, the principle of substantive neutrality routed responsibility for procedural change to other institutions if the change's regulatory or distributional consequences prompted ideologically salient controversy.

    2. Substantive Neutrality and the 1938 Generation

      Most of us would probably accept as substantively neutral something like a rule that requires parties to meet-and-confer on a format for the exchange of electronically stored information in discovery. But more significant...

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