The Legislative Role in Procedural Rulemaking Through Incremental Reform

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 762. The Legislative Role in Procedural Rulemaking Through Incremental Reform

The Legislative Role in Procedural Rulemaking Through Incremental Reform

Briana Lynn Rosenbaum(fn*)

ABSTRACT

Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress's policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature proposed scaling-back access to remedies in courts in almost every type of case. These bills-while seemingly "procedural"-have the potential to shape individual rights and remedies, incentives to sue, and the costs of litigation.

The Article uses an institutional incremental approach to viewing legislative procedural law change. It examines both historical and current legislative efforts at litigation and procedural reform, identifying "major" and incremental policy proposals. Viewing legislative litigation reform in this light reveals that the legislature has taken an active role in the development of procedural law and retrenchment of court access, not just through major reform legislation, but through small,

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targeted actions that can have great effects over time. This Article then provides observations on the character and efficacy of legislative procedural reform. Unlike procedure generated from the court-centered REA process, incremental legislative procedure is often targeted to, and motivated by, altering remedies in a particular substantive area,non-transparent, and unmoored from adjudication and practice-based normative values. The history suggests that procedural scholars should rethink the legislative role in shaping the adjudicatory process.

TABLE OF CONTENTS

I. Introduction .......................................... 764

II. Court-Centered Development of Procedural Law ....... 767

III. Historical Litigation Reform in Congress - Ongoing Legislative Involvement in Shaping the Adjudicatory Process ............................................... 778

IV. Legislative Attempts at Procedural Reform in the 115th Congress .............................................. 788

V. Observations - The Nature and Efficacy of Incremental Legislative Procedural Reform ......................... 799

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2. Not Transparent ............................... 810

VI. Conclusion ............................................ 818

I. INTRODUCTION

We are in a period that has been described by many scholars as rights-retrenching.(fn1) In the area of civil litigation, there have been concerted efforts to decrease systemic costs, limit the exposure of businesses and other defendants to litigation, and decrease exposures to liability in tort, medical malpractice, products liability, and civil rights. However, it is fairly difficult to accomplish this reform by withdrawing underlying substantive rights. Once people have certain rights, it turns out they do not appreciate them being taken away. Instead, in recent years, a clear trend has emerged using procedural rule changes as a substitute for substantive reform.

In documenting this trend, the focus in scholarship has largely been on the evolutionary retrenchment of rights via procedural reform emanating from the judicial branch.(fn2) This reflects the traditional view of federal procedural rulemaking, which sees the Rules Enabling Act as squarely placing this function in the hands of the judiciary. Whether it is drafting, studying, proposing, or interpreting procedural rules, the Supreme Court, the Judicial Conference, and individual judges are seen as the ultimate lawmaking authorities. While a number of scholars have documented and analyzed congressional efforts to engage in procedural rulemaking,(fn3) the focus in procedural design scholarship is usually on the rare occasion that Congress has passed a

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"major" procedural reform package,(fn4) such as the Class Action Fairness Act of 2005 (CAFA)(fn5) or the Private Securities Litigation Reform Act of 1995 (PSLRA).(fn6) As is often pointed out, Congress fails to pass procedural reform (such as Rule 11 reform) more often than it succeeds.(fn7)

Thus, a narrative persists that Congress retains primarily a "passive role" in the procedural rulemaking process. In this Article, I question this narrative by exploring the role of Congress in the incremental development of procedural rules in the federal judicial system. I argue that Congress has played-and may continue to play-a significant role in this change. Congress repeatedly proposes and passes procedural "reform" legislation. These changes-while seemingly "procedural" and "neutral"-are usually proposed for the purpose of furthering specific substantive outcomes. And many of the modern measures have some element that is designed, either in effect or in purpose (or both), to retrench access to litigation and the courts.

Legislative procedural reform has the potential to shape individual rights and remedies, incentives to sue, and the costs of litigation for private parties. Despite this, it often receives little public attention. And, if it does, the attention is usually piecemeal or focused on the "substantive" portions of the bills. This Article shifts the focus of legislative study from formal procedural policy change to the study of incremental procedural policy changes.(fn8) It does this using institutional incremental theory, a public policy approach to understanding policy change. In this way, this Article adds to a growing community of scholarship that sees procedural rulemaking as part of a larger institutional dynamic. Several actors have a role to play in its development: media, courts, bureaucracies, political parties, interest groups,

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attorneys, repeat players, and the legislature. The Article adds to this conversation by focusing attention on the legislative role.

In Part II, the Article explores the court-centered REA rulemaking process and Congress's role in the same. As part of this, the critiques of the REA process are explored, as well as some of the foundational metrics procedural rule makers use when promulgating rules and the role that institutional incremental theory plays in studying modes of legislative efforts at reform. These insights offer metrics by which to judge the legislative procedural rulemaking. Next, the Article examines legislative litigation and procedural reform efforts, first over the last three decades-in Part III-and then in the 115th Congress-in Part IV. This effort is accomplished using an institutional incremental approach to viewing law change. This approach assumes that changes to underlying structural remedies can occur both incrementally, through minor changes, and through major legislative overhaul. To view this best, congressional efforts to shape litigation reform must be viewed over time. Thus, care is made to choose congressional action that has taken place without regard to targeted substance, "size," or perceived impact of the change. Doing this provides a fresh view of Congress's role in the procedural rulemaking process.

In Part V, the Article draws on these observations and singles out Rule 11 Reform and Americans with Disabilities Act (ADA) accessibility pre-suit notification reform to provide needed insights into the nature and efficacy of legislative forays into litigation reform. In particular, this research shows that Congress has played, and continues to play, a major role in shaping the adjudicatory process. It does so not as much through major reforms, but through the combination of incremental and major reforms. It also provides new insights into the character of incremental legislative procedural reform. Unlike procedure generated from the court-centered REA process, incremental legislative procedure is often targeted to, and motivated by, altering remedies in a particular substantive area, non-transparent, and unmoored from adjudication and practice-based normative values.

In short, litigation reform has been a bread and butter conservative ideological issue for the past three decades, and procedural rulemaking has been one of the major tools used to accomplish this goal. Legislative successes in this area have shaped the procedure of federal courts in fundamental and often non-transparent ways. The history suggests that procedural scholars should rethink the legislative role in procedural rulemaking and thus, the systemic structure of the courts. By viewing a cacophony of measures targeting seemingly disparate aspects of the litigation system, a broader picture emerges of an institution that is actively engaged with the judicial and civil rulemaking bodies in the ongoing effort to evolve the litigation process.

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II. COURT-CENTERED DEVELOPMENT OF PROCEDURAL LAW

The primary method of procedural rulemaking in the federal system is through the court-centered Rules Enabling Act process. Through this process, the Judicial Conference and the Supreme Court propose Federal Rules of Civil Procedure (FRCP)...