The fourth era of American civil procedure.

Author:Subrin, Stephen N.
Position:Introduction through II. Deconstructing the Fourth Era B. Case Management as a Solution, p. 1839-1867

INTRODUCTION I. RECOGNIZING THE FOURTH ERA II. DECONSTRUCTING THE FOURTH ERA A. Growth in Civil Caseloads B. Case Management as a Solution C. Business and Political Responses D. Conservative Ideology E. The Federal Judiciary F. Other Contributing Factors III. EVALUATING THE FOURTH ERA A. Procedure's Instrumental Purpose B. Procedure's Inherent Value C. Procedural Efficiency D. Procedure's Consonance with Structural Values IV. ESCAPING THE FOURTH ERA A. The Mindset of the Federal Bench B. The Mindset of the Legal Academy C. The Mindset of the Public and the Legal Profession D. The Mindset of Newt Gingrich and His Ilk INTRODUCTION

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. (1) Both of that treatise's named authors, Charles Alan Wright and Arthur Miller, (2) have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. (3) Miller has also published a series of articles that chronicled his grief. (4)

We agree that something has fundamentally changed.* 5 In fact, we believe that we are in the midst of what should be labeled a new era--the fourth in the history of American civil procedure. The first three eras are rather conventional: the first era began with the country's founding; the second era began in the middle of the nineteenth century with the introduction of code pleading; and the third era commenced in 1938 with the Federal Rules of Civil Procedure.

In Part I, we defend the thesis that we are now in a distinct, fourth era. This era is not defined, for the most part, by the introduction of a new set of formal procedural rules; indeed, the formal procedural rules of the third era are largely intact. But if the core values of those rules have been eviscerated by judicial decisions, interred by antipathy, and eulogized by none other than Wright and Miller, we should acknowledge that the third era has, in fact, yielded to a fourth. In Parts II, III, and IV, respectively, we untangle the many forces that conspired to produce this fourth era, offer an unflattering appraisal of it, and begin to plot a strategy for escaping its clutches.


    Periodization may be the most important thing historians do. (6) The process of understanding facts or data requires some organization; (7) this is how humans think. (8) The organization of historical facts and data into eras provides essential context for scholars, teachers, and students of a subject. (9) To be sure, one must be self-conscious about periodization, as it "is both the product and the begetter of theory." (10)

    The history of American civil procedure divides rather naturally into three eras. (11) The first era commenced with the founding of the United States. In the seventeenth and eighteenth centuries, English substantive and procedural laws were transplanted. (12) Ironically, the reception of English law continued even after the Revolution. (13) As a practical matter, however, this was all the colonists knew. (14) The inherited characteristics of procedure included the divergent yet complementary systems of law and equity. (15) Furthermore, because the new federal government introduced a layer of federal courts to complement the pre-existing layer of state courts, the law-equity dynamic endured on both of these levels. (16)

    In 1848, the State of New York launched the second era of American civil procedure history by enacting what has since been called the Field Code. The Code merged law and equity into a unified procedural system, deliberately tried to reduce the steps and procedural technicality of a lawsuit, and articulated a distinct role for procedure, trying to ensure that substantive rights would be vindicated consistently, predictably, and correctly. (17)

    Around the turn of the twentieth century, reformers demanded a new procedure that would apply uniformly across all federal district courts. (18) A well-chronicled, decades-long effort ultimately led to the passage of the Rules Enabling Act of 1934. (19) The Federal Rules of Civil Procedure became law four years later, launching the third era.

    The drafters of the Federal Rules wanted cases to be resolved on the merits. Yet it appears that the drafters had little faith in the ability of procedural rules to engineer that result. In the first and second eras, procedure was so rigid and technical that it led to dismissals based upon technicalities and, more generally, enabled a "sporting theory of justice." (20) In the third era, the drafters cast procedure moreso as a villain or a necessary evil, rather than as a solution or a savior. (21) The Federal Rules thus minimized judicial interference with the natural course of litigation as dictated by the attorneys.

    The Federal Rules were premised on the notion that, once the parties learned the relevant facts, cases would either settle or go to trial. (22) Procedure had a limited role in this process. It ensured that the parties had the mechanisms to obtain the relevant facts and, for those cases that did not settle, that the parties had access to a trial. According to those involved with the drafting and early interpretations of the Federal Rules, judges had the authority to dismiss the case prior to the discovery of relevant facts only in exceptional circumstances. (23) Furthermore, judges were given the authority to enter a summary judgment after the discovery of relevant facts and before a trial only in very limited circumstances. (24)

    While the precise rate of dismissals in those early decades under the new Federal Rules remains something of a mystery, (25) we can fairly surmise that the number was very small. Even as late as the 1980s, the Advisory Committee reviewed and discussed a draft proposal to abrogate the 12(b)(6) motion because it was never used and, therefore, served no purpose. (26) Around that time, Arthur Miller joked that the motion "was last effectively used during the McKinley administration." (27)

    Summary judgment was the other dispositive motion that the new Federal Rules institutionalized yet also tempered. Once again, the activity of the rulemaking committee may provide the most useful insight about how the motion was (not) used in its early years. In the 1980s, reformers tried to amend the rule because judges were not using the summary judgment rule to its full effect. (28) That was probably an accurate assessment since judges exhibited "extreme vigilance against treading on contested fact issues or...

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