The Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to Law?

• Jurisdiction: United States,Federal
• Publication year: 2014
• Citation: Vol. 30 No. 4

The Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to Law?

James R. Maxeiner
University of Baltimore School of Law, jmaxeiner@ubalt.edu

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THE FEDERAL RULES AT 75: DISPUTE RESOLUTION, PRIVATE ENFORCEMENT OR DECISIONS ACCORDING TO LAW?

James R. Maxeiner^*

Abstract

This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the "sporting theory of justice" with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America's proceduralists split into two sides about what to do.

One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary judgment ("dispute resolution"). The other side defends rules that open litigation to investigation of possible rights: e.g., notice pleading, open and free discovery, and limited summary judgment ("private enforcement").

Both sides focus on process. They overlook the essential goal of civil justice the world over: "to apply the applicable substantive law to the established facts in an impartial manner, and pronounce fair and accurate judgments."¹ They forget decisions according to law.

Abroad we can see systems of civil justice that work, if only we would look. Whereas the heroes of American civil justice, David Dudley Field, Jr., Roscoe Pound, Edmund C. Clark, and Edson D. Sunderland, looked abroad for solutions, today's proceduralists from

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the private enforcement side tell us to avert our eyes from foreign systems. Why? Supposedly our system in its goals is exceptional. In fact, it is not. We could and should learn from others.

Table of Contents

Introduction.........................................................................985

I. Requiem for the Federal Rules at 75?.........................988

II. Chronicles of the Federal Rules................................992

A. Prologue.....................................................................992
B. Clark and Sunderland's Goal: Decisions According to Law (1938).................................................................994

1. Pleading: The Old Way of Deciding What to Decide...................................................................995
2. Pre-trial: The New Way of Deciding What to Decide...................................................................997

a. Finding and Presenting Material Facts in Dispute............................................................998
b. Formulating Issues.......................................1000
c. Applying Law to Facts..................................1001

C. The Federal Rules Come of Age Lagging Justice (1959).......................................................................1002
D. At Middle Age: Popular Dissatisfaction (Again) (1976).......................................................................1005

1. The National Conference on the Causes of the Popular Dissatisfaction With the Administration of Justice ("The Pound Conference") (1976)........1006
2. What Went Wrong?............................................1006

E. The Fourth Era in Civil Procedure..........................1008

III. Federal Rules—The Epic...........................................1009

A. Founders' Era (1938-1959)....................................1011
B. Rights Revolution (the 1960s)..................................1012
C. Corporate Counterrevolution..................................1013

IV. The Future on the Merits?........................................1014

A. Learning From Foreign Systems.............................1015
B. Sunderland to Miller, Marcus, and Carrington: "Why don't you take advantage of what has been done by the civil law . . .?"..........................................................1017

1. American Exceptionalism...................................1018

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2. Foreign Fact Instead of Exceptionalism Fantasy...............................................................1020

Conclusion..........................................................................1023

Introduction

The Federal Rules of Civil Procedure of 1938 outfitted American civil justice with tools to apply law to facts. They were an attempt to banish overly contentious litigation (the "'sporting theory of justice'").² Applying law to facts is fundamental to civil justice. Civil lawsuits resolve disputes between parties by determining legal rights and duties. By enforcing law, they make civil life possible in mass society.

The Federal Rules were not, however, a comprehensive reform of civil justice. They were limited to rules of court.³ Although they bestowed on courts new power and authority to apply law to facts, they left key aspects of civil justice (e.g., court organization, jurisdiction, costs, appeals) unaltered.⁴ They created no new institutions, such as a ministry of justice, which might have helped to make reform reality. They brought with them no codification of substantive law, such as David Dudley Field, Jr. sought when he led America's last major attempt to rationalize procedure.⁵ Old ways persisted.

When the Federal Rules went into effect September 16, 1938, judges and lawyers did not change their practices.⁶ Although judges had new powers and authority to formulate issues, they did not make much use of them. Although lawyers had new powers and authority to reach together the real issues between the parties, they rarely cooperated to

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do that. When eventually lawyers did use their new powers and authority, they acted not to streamline trials, but to unearth new causes and to conduct pretrial inquiries.⁷ Applying law to fact receded as a goal of the Rules. Parties settled, not because the merits were against them, but because process costs and risks were too great.⁸ Trials vanished.

By 1976, serious problems were apparent.⁹ Proceduralists fractured into two sides that continue to this day. One side focuses on resolving disputes;¹⁰ the other focuses on social goals through private enforcement of public law.¹¹ Debates about revisions of the Federal Rules are about process and not about making decisions according to law. The former side restores the spirit of the sporting theory of justice and rewards zealous advocates;¹² the latter emulates the endless equity proceedings that exhausted estates and benefited only solicitors.¹³ Neither side adequately accounts for the interests of litigants.

Neither side addresses the essential goal of the Federal Rules, which is the need of the public: routine application of law to facts to determine rights and resolve disputes. Neither side considers comprehensive reform of civil justice which would overhaul the Rules and reach beyond to restructure the whole system. No wonder that there is again popular dissatisfaction with the administration of civil justice.

The public's goal is stated in Federal Rule 1: "to secure the just, speedy, and inexpensive determination of every action and proceeding."¹⁴ The founders of the nation stated the same goal already in 1776 when they declared everyone "ought to have justice and right,

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freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land."¹⁵ That declaration forms part of many state constitutions.¹⁶ It is due process in the federal constitution.¹⁷ It is not a Utopian goal but an attainable one. If only we would adopt modern legal methods.

A way to that goal is before our eyes, but we do not look. Abroad we can see systems of civil justice that work. But whereas the heroes of American civil justice, David Dudley Field, Jr., Roscoe Pound, Edmund C. Clark, and Edson D. Sunderland, urged us to look abroad for solutions,¹⁸ today's proceduralists tell us to avert our eyes.¹⁹ Why? They assert that our system is exceptional in its goals.²⁰ This is that story.

Part I reports dismay at the 75th anniversary commemorations: the Federal Rules do not work to routinely resolve cases justly, quickly, and inexpensively.²¹ Part II chronicles where we have been: how the Federal Rules were supposed to turn lawsuits from sporting contests into applications of law to facts to determine rights and how they are turning in a fourth era of civil procedure into dispute resolution.²² Part III relates the epic story of the attempt to use the Rules for private enforcement of social goals.²³ Finally, Part IV points a way to return

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to decisions on the merits by stripping away the blinders that keep us from learning from foreign civil systems that work well.²⁴

I. Requiem for the Federal Rules at 75?

[H]ave the Rules in fact achieved the just, speedy, and inexpensive determination of every action?

Harold Koh (2013)²⁵

The Federal Rules of Civil Procedure turned seventy-five in 2013. Judges, lawyers and academics around the country celebrated.²⁶ Above all, they extolled social uses of the Rules that have made it possible, in their view, for civil litigation to shape America. When the Rules were adopted in 1938, they were intended to govern routine dispute resolution.²⁷ Today the Rules sometimes are put to work for private enforcement of public law norms, for making public policy, and even for creating new norms.²⁸ These social uses are said to define the character of the American system of civil litigation.²⁹

Americans engaged in civil litigation either love the Federal Rules or hate them, depending mainly upon how they feel about the Rules' social uses. Members of the profession who live by the rules—judges,

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lawyers and law professors—largely love them.³⁰ Business people, who are subject to them, largely hate them.³¹ Both sides presume to speak for the public who are neither legal professionals...