On this seventy-fifth birthday of the Federal Rules of Civil Procedure, it is worth noting that the Rules are that rare public document that contains within its text the very metric for measuring its own success. Contrast, for example, the U.S. Constitution, which aims "to ... secure the Blessings of Liberty to ourselves and our posterity" (1)--an outcome not easily measured. But the Federal Rules say simply--in a phrase I first heard on my first day studying civil procedure--that they shall be construed and administered to achieve "the just, speedy, and inexpensive determination of every action." (2)
I have puzzled over this phrase during more than thirty years of teaching procedure: I spent twenty representing human rights plaintiffs, ten years in the U.S. Government, usually representing defendants or amici in international and foreign relations disputes, and five years as a law school dean, considering how the legal academy should teach both procedure and globalization.
This anniversary raises three questions: First, after seventy-five years of these Rules, have the Rules satisfied their own standard? Second, if they have not, why not? And third, what does the future hold for the Rules, particularly as they face the challenge of globalization?
First, have the Rules in fact achieved the just, speedy, and inexpensive determination of every action? This Symposium presents a remarkable set of Articles commissioned to answer this very question. Do these rules promote "just" determinations or outcomes characterized by equality, (3) participation, and fairness? Judith Resnik's article on citizen access for private enforcement (4) and Kevin Clermont and Theodore Eisenberg's consideration of "plaintiphobia in the Supreme Court" (5) express concern about whether the Rules actually promote equality. Alex Reinert's article further explores whether the Rules still ensure a meaningful day in court before a jury of one's peers. (6) These articles make clear that the phenomenon of the "vanishing trial" is not easily squared with the Rules' rhetorical commitment to resolution of disputes on the merits rather than on technicalities.
How speedy are these determinations? In 1951, the median time from filing to disposition for tried cases was 12.2 months. In 1962, that number was sixteen months. Since 1990, the median time to disposition for all terminated cases is only seven to eight months. But as of 2012, the median time from filing to disposition remains twenty-three months in those cases where there is a trial, which, of course, these days are only one percent of all cases. (7)
Are these determinations inexpensive? A recent Federal Judicial Center study suggests that, in fact, higher litigation costs have resulted from a number of factors, including higher litigation stakes, longer processing times, attorneys' fees, (8) e-discovery, large firm engagement, case complexity, and a series of nonmonetary collateral issues. (9)
Finally, what about reaching a final "determination" of every action? Even as we have more terminations, our current system seems to give us fewer determinations. In 2013, only slightly over one percent of more than 250,000 civil terminations in the federal courts over the previous twelve consecutive months occurred after reaching trial. (10) As Owen Fiss recognized three decades ago, such statistics call into question whether settlement is invariably a good thing, and whether, in too many cases, a fixation on achieving settlement has prioritized clearing dockets over doing justice. (11)
In sum, even by the Rules' own standard, the interim report card seems decidedly mixed: Is today's civil process just? Sometimes no. Is it speedy? Relatively. Inexpensive? Not really. Are there determinations of every action? Terminations, yes, but not necessarily "determinations."
Nearly eighty years ago, Charles Clark, my revered predecessor as Dean of Yale Law School, suggested three basic premises by which the Rules' drafters intended the Rules to promote justice: (12) first, simplicity of plain, nontechnical language; second, trans-substantivity (13)--as expressed in the famous phrase, "[t]here shall be one form of action--the civil action"; and third, a liberal philosophy with regard to construction, amendment, joinder, discovery, and party control, all designed to lower barriers to trial and to promote adjudication on the merits, not on the pleadings.
Justice Hugo Black, in language that was later dropped from his landmark opinion in Conley v. Gibson, made plain that: "The Federal Rules ... accept the principle that pleadings simply serve as a useful means to facilitate a proper decision on the merits.... Under [Federal Rule of Civil Procedure 8] the best cause, not the cleverest pleader, is to prevail." (14) Later, in Surowitz v. Hilton Hotels Corp., Justice Black affirmed that "[t]he basic purpose of the Federal Rules is to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion." (15)
Given this high rhetoric and lofty aspiration, why do so few cases ever get to trial today? One might call it the "8-12-23-56 problem." (16) Fewer cases get to trial after Twombly (17) and Iqbal, (18) sometimes referred to jointly as Twiqbal, because they are dismissed on the pleadings under Federal Rules 8 and 12. (19) Twiqbal's new requirements of "plausibility pleading" impose severe information asymmetries upon civil rights and human rights plaintiffs who are expected at the outset of actions to offer nearly conclusive demonstrations of defendants' intent. (20) As Tobias Wolff's article discusses, after Wal-Mart, Comcast, Concepcion, and American Express, aggregate cases increasingly are not certified as classes under Rule 23 or are decertified after initial class action certification. (21) Under Rule 56, as interpreted by the Celotex trilogy, (22) cases are dismissed at summary judgment or managed to a single issue and settled. They are foreclosed because of judicial gatekeeping of expert evidence under the Supreme Court's standard in Daubert. (23) More cases are diverted to arbitration under the Federal Arbitration Act; (24) and more cases are dismissed for a lack of jurisdiction--subject matter or personal--whether for a lack of specific jurisdiction after McIntyre (25) or for a lack of general jurisdiction after Goodyear. (26)
Severally, none of these phenomena may be entirely new, but what are their collective consequences? In three quarters of a century, we have moved from a culture of trial to a culture of settlement and dismissal. Cases are terminated earlier based on less information about the claim, the evidence, or the merits. And the values of efficiency and cost reduction have been privileged over other systemic values, particularly the dignitary notion that every litigant deserves his or her day in court.
This tangled evolution is perhaps best synthesized in Arthur Miller's magisterial New York University Professorship lecture, which I commend both because of the completeness of his analysis and the passion of his discussion. (27) His questions obviously were: Is this really our conception of due process? (28) Does this privilege Posner's blunt notion of cost-minimization (29) over Michelman's (30) and Mashaw's (31) emphasis on fraternal values like dignity and participation? Do we really want our system of procedure to privilege instrumental, Benthamite notions of due process based on cost--benefit analysis over intrinsic Kantian notions of dignitary fairness?
In such a world, who loses? Plaintiffs and under-resourced litigants lose, juries almost never sit to decide cases, and novel claims lose. Perhaps the greatest loss is that judges give up their traditional function as adjudicators and become "terminators." As Judge William Young said at this Symposium, judges sit to close cases; they are increasingly seen and see themselves as gatekeepers, managers who administer techniques of settlement and dismissal. When you cannot measure what is important, you tend to make important what you can measure. And so like anyone else in the workplace, judges tend to do what is measured, and what is measured and valued in today's courthouses is how many cases are closed, not how justly they are decided.
Obviously, 1938 was a simpler world, dominated by bipolar, adversarial, and private law adjudication, what Abram Chayes (32) and Richard Marcus (33) called "our received tradition"--private claims, simple party structures, and passive judicial decisionmakers dedicated to private dispute resolution based on a retrospective damages remedy.
But we all know that the rules have necessarily adapted to rapid changes in technology, the rise of interest group politics, regulation and the administrative state, the pervasiveness of Alternative Dispute Resolution, and the globalization of markets, rights, and communication: all of which have led to at least three types of complex litigation.
The first and most famous, now canonically inserted into all procedure courses, is the so-called "heroic model" that Richard Marcus writes about in today's Symposium: (34) the "domestic public law litigation" that Abe Chayes celebrated and the institutional reform litigation described by Owen Fiss. (35) In contrast to private law adjudication, public law litigation is prospectively focused, characterized by complex claims and structures, and by inquiring active judges who use injunctive powers to fix wrongful systems, like prisons and hospitals, with their goal being as much enunciation of public norms as resolution of private disputes.
A second form of complex litigation, as Kenneth Feinberg reminded us at this Symposium, is "mass tort litigation." Such litigation attempts to sort out large-scale disasters, toxic torts, and products liability imbroglios: ostensibly private lawsuits that are now increasingly infused with the public interest. While many of these cases are still...