The Fragmentation of Federal Rules - Erwin Chemerinsky and Barry Friedman

• Jurisdiction: United States,Federal
• Publication year: 1995
• Citation: Vol. 46 No. 2

The Fragmentation of Federal Rules

Erwin Chemerinsky^* and Barry Friedman^**

I. Introduction

In 1938, the Federal Rules of Civil Procedure were adopted. Their adoption represented a triumph of uniformity over localism. The lengthy debate that prefaced the adoption of the rules focused upon the value of a national set of rules, as opposed to the then-governing practice of "conformity," in which local federal practice mirrored that of the state in which the federal courts sat. Although many different arguments were offered in favor of the federal rules, at bottom the rules' proponents carried the day by arguing that procedure ought to be the same across the federal courts and the cases those courts heard.¹

Almost sixty years later, the central accomplishment of uniform federal rules is in serious jeopardy. The trend today is away from uniformity and toward localism, though perhaps not consciously so. The federal rules themselves permit individual district courts to enact their own local rules.² While concern about the impact of local rules upon the uniformity of the system of federal rules is long standing, recent years have seen a proliferation in these local rules. Although the ostensible purpose of these rules is not to disrupt national rule uniformity, that often is their impact. Then, in 1990, Congress adopted the Civil Justice Reform Act ("CJRA").³ The purpose of the CJRA is to achieve broad based reforms in the way federal civil cases are handled by lawyers and the courts. The primary mechanism of the CJRA, however, is individual rulemaking by the ninety-four separate district courts and their adjunct advisory committees established under the CJRA to effect reform.⁴ Further, in 1993 the Federal Rules of Civil Procedure were amended in significant ways, particularly with regard to discovery procedure. Framed against the backdrop of the CJRA, the discovery amendments offer an opt-out for any district court that chooses not to participate. Many district courts have taken this option, formulating their own variant of the discovery process.⁵ Thus, discovery also now operates quite differently in each district.

This fragmentation of procedure is not motivated by a strong drive toward localism. Almost no one is heard to offer support for the notion that the fundamental decision made in 1938 ought to be reversed. Rather, the current trend toward localism appears to be a by-product of a much broader concern about the direction and process of civil litigation generally.⁶ The perception is that federal civil litigation is facing a crisis of burgeoning dockets and escalating costs.⁷ Lacking strong central leadership, individual districts adopted local rules to address these perceived problems. Congress, caught in the reform fervor, also opted for local solutions. The Judicial Conference, when it tried its hand at reform, felt it had little choice but to continue the trend.

Whatever the impetus for the movement to localism, a topic we discuss below, its result can hardly be gainsaid. A study of local rules made seven years ago found some 5,000 local rules in existence, many of them at variance with the federal rules, not to mention one another.⁸ The CJRA expressly invites every one of the ninety-four districts to adopt its own model of how federal litigation should proceed, dealing with such important topics as case management, tracking for different cases, motion practice, and alternative dispute resolution. Early results display a tremendous disuniformity among federal districts, and increasing variance from the Federal Rules of Civil Procedure. The impact of the opt-out provisions of the 1993 Civil Rules Amendments is of like effect. Some seventy years ago, during the long conversation about uniform federal rules, one commentator stated that "[t]here is no more excuse for differing judicial procedure than for differing languages in the several States."⁹ Despite the apparent kernel of sense in this statement, today the proliferation of local rules and the trend to local models of adjudication threaten to turn federal practice into a veritable Tower of Babel in which no court follows the process of any sister court.

In this Article we critique the movement to localism in rulemaking. In doing so, we put largely to one side the very difficult and very controversial questions of whether there is a litigation "crisis" in the federal courts, whether procedural reform can or will address that crisis, and whether any particular procedure is a good one. Rather, our focus is on the somewhat more limited but perhaps ultimately most important question of whether it really is a good idea for every district court in the country to go its own way in developing civil process. Our answer, simply put, is no. The ill-considered and unmanaged proliferation of local rules is likely to exacerbate any problems there are with civil litigation. Different procedural rules will have an impact upon substantive justice. Varying procedures will lead to forum shopping, unnecessary cost, and widespread confusion. Amidst strong arguments against localism in rulemaking, there is almost no serious argument that supports it.

In Part I of this Article we detail the trend toward localism in rulemaking, treating principally the development of local rules, the Civil Justice Reform Act of 1990, and the 1993 Amendments to the Civil Rules. This Part describes the movement toward localism, and discusses some of the motivations that prompt it. In Part II we make the case for federal uniformity and against localism. In this Part we explain why fragmentation of procedure is likely to cause harm to the federal district court system and the litigants that rely upon it. In Part III we take up and respond to the arguments that are advanced in favor of localism. We conclude that for the most part those arguments have little or no merit and certainly on balance do not justify the escalating trend we are seeing toward localism. Finally, we conclude by offering a proposal to centralize rulemaking authority, while allowing some room when variance is desirable or experimentation is required.

One ray of hope amidst the confusion of local rulemaking is a provision in the CJRA that ultimately requires the Judicial Conference to make recommendations based upon the experiences of the many district courts with their own CJRA plans.¹⁰ This provision seems to treat at least part of the current trend toward localism as temporary only; a brief study period before adoption of new uniform rules. Below we express serious concern with the CJRA's methodology in this regard, pointing out that the scientific nature of the enterprise is illusory. Nonetheless, there is promise in the mandate of subsequent review with an eye toward uniformity. It is our considered hope and judgment that after several years of procedural fragmentation, the future holds an opportunity to collect all the pieces and reverse the trend, once again imposing procedural uniformity upon the federal courts.

II. The Trend to Localism

A. Manifestations of the Trend

An increasing array of important procedural issues are now dealt with in federal courts in a local, rather than a national fashion. Generally, this means that the judges in each federal district collectively make a decision as to specific procedures to be followed within that district. Sometimes, the procedures are even more localized with individual judges deciding the rules to be followed in their courtrooms. Overall, the result is that uniformity among federal districts and sometimes within them has been increasingly replaced by divergence.

There are many manifestations of this trend towards localism. Most notably, the development of local rules of procedure, the Civil Justice Reform Act, and the recent amendments to the discovery provisions of the Federal Rules of Civil Procedure all have contributed to the increasing diversity in procedures in federal courts across the country.¹¹

1. Local Rules. The Rules Enabling Act provides that the "Supreme

Court and all courts established by Act of Congress may from time to time prescribe rules for conduct of their business."¹² Thus, the Rules Enabling Act clearly authorizes federal districts and federal courts of appeals to promulgate rules of procedure for cases arising within their jurisdictions. The Rules Enabling Act contains both substantive and procedural limits on what these lower courts may do in their rules.

Substantively, all such rules must be consistent with acts of Congress and with rules promulgated by the Supreme Court, such as the Federal Rules of Appellate Procedure, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence.¹³ Procedurally, in adopting local rules, courts are required to publish them in advance and allow time for public comment.¹⁴ Rules adopted by a district can be abrogated by the judicial conference of the circuit or by the Judicial Conference of the United States.¹⁵

Traditionally, local rules adopted by districts have dealt with relatively minor matters, such as the size and type of paper to be used.¹⁶ In general, the local rules have handled practical aspects of litigation not covered by the federal rules. Increasingly, however, local rules deal with much more important aspects of court procedure, and there is enormous variance among the districts.¹⁷

Not surprisingly, local rules have become especially important in areas where there have been great pressures for change in recent years: discovery; settlement; and the use of alternative dispute resolution. Concern about protracted litigation and a desire for greater efficiency have caused districts to adopt rules to better control discovery and to find ways to dispose of cases without trials.¹⁸ The discovery provisions of the Federal Rules of Civil Procedure were revised in 1993 in response to the same concerns.¹⁹ Districts also have tried on their own to deal with the...