The privatization of process: requiem for and celebration of the Federal Rules of Civil Procedure at 75.

• Author: Resnik, Judith

The normative goals of the 1938 Federal Rules facilitated a reconceptualization of federal adjudication by welcoming into court a diverse array of persons who, as the century unfolded and equality mandates expanded, became rights-holders. As a consequence, courts came to serve as venues for democratic debates about rights and remedies. Seventy-five years later, that egalitarian project has contracted, and the Federal Rules have been refocused on management and judge-based settlement efforts.

That privatizing of process inside courts, as well as the devolution to agencies and outsourcing to private providers, is promoted by official voices within the federal judiciary. These new procedural forms close off public access by siting dispute resolution outside the public sphere. Not only are potential claimants losing knowledge of alleged injuries and the modes of redress, but these privatizing procedures undermine rationales for public and private investments in the lower federal courts. In 1995, the federal judiciary's Long Range Plan worried about the nightmare of ever-expanding filings and vanishing trials. By 2014, data on filings and investments showed flattening rates of filing, reductions in courthouse space, and tightening budgets. While the Long Range Plan's aspirations to control growth may be coming to fruition, the planners' hopes of preserving the federal courts as lively venues, hospitable to diverse claimants trying cases, are not being fulfilled. Absent changes in rules, doctrines, and practices, the federal courts-like the 1938 Federal Rules-are moving into a decline and, with them, opportunities for public debates about the contours of legal norms.

1. EQUAL JUSTICE, CIRCA 1938, AND THEN, THEREAFTER II. INVESTING IN FEDERAL JUDICIAL POWER III. RECONCEPTUALIZING THE "JUDICIAL," REWRITING THE RULES, AND RE-SITING ADJUDICATION: THE NEW PRIVATE PROCESS A. The Settling, Managing, Multi-Tasking Judge B. Devolution C. Outsourcing IV. ENDANGERED SPECIES: TRIAL JUDGES AND PUBLIC PROCESSES V. NIGHTMARISH SCENARIOS: LONG RANGE, STRATEGIC PLANNING, AND PROJECTED CASE FILINGS VI. BACK TO THE FUTURE: FLATTENED FILINGS AS A NORMATIVELY RISKY GOAL FOR THE FEDERAL COURTS VII. FORWARD TO THE FUTURE: THE DECLINE OF DEMOCRATIC OPPORTUNITIES FOR DEBATING NORMS I. EQUAL JUSTICE, CIRCA 1938, AND THEN, THEREAFTER

   "Drink to our Rules-they know of no flaw: 'Equal Justice Under the Law!'"

   --George Wharton Pepper, circa 1938 (1)

   In 1938, George Wharton Pepper, a former U.S. senator and member of the committee that drafted the Federal Rules, provided these closing lines in one of his "toasts" to the new Federal Rules of Civil Procedure. (2) Reading his words in 2014, it is possible to miss that the idea of "equal justice under law" was then innovative. In 1938, those words did not (as they do now) appear in scores of state and federal opinions.

   Rather, the phrase "Equal Justice Under Law" had been newly minted in 1935 to grace the top of the front facade of the Supreme Court's new courthouse. (3) The architects suggested the words to fit the space allotted above the pillars in the Court's first building of its own. Etched on the other side are the words "Justice the Guardian of Liberty," (4) which captured the constitutional jurisprudence of the era, as "liberty"-of contract and from regulation-was its leitmotif. Indeed, at the 1932 ceremony laying the cornerstone, Chief Justice Charles Evans Hughes called the new building "a testimonial to an imperishable ideal of liberty under law" and made no mention of equality. (5)

   Yet today "Equal Justice Under Law" is the "tag line" for the U.S. Supreme Court, which uses it on the cover of brochures. (6) The linkages between the Supreme Court's iconic marble temple and equality under law were forged in the decades that followed, through Brown v. Board of Education in 1954 and Reed v. Reed in 1971, intersecting with landmark federal laws protecting equal rights in accommodations, credit, housing, salaries, and employment, supplying lawyers by way of the Legal Services Corporation, mandating fee-shifting for victorious civil rights claimants, and thereby equipping individuals with resources to pursue rights in courts.

   The toast by Pepper in 1938 predates these renovations of American law. Yet the normative goals that infused the 1938 Federal Rules facilitated this reconceptualization of federal adjudication by welcoming into court a diverse array of persons, who became rights-holders as the century unfolded. Many scholars have chronicled the underpinnings of the 1938 Rules-with their functionalist, anti-formalist commitments to easing barriers to entry through trans-substantive, uniform, national provisions that expanded opportunities for information exchange, vested discretion in trial judges, and aimed for efficient decisionmaking focused on the merits of claims. (7)

   The equality goals of the 1930s rested in part on the trans-substantivity of the Rules, cutting across an eclectic expanse of civil proceedings and assuming the fungibility of litigants. All kinds of cases were subject to the same regime. Further, to the extent that any rule worked to the advantage of a "plaintiff" or a "defendant," that advantage would be neutralized over time as, in some cases, a given person or entity would be a plaintiff and in other cases, a defendant-shaping a sense of a new neutral system, resulting in "equal justice under law."

   For several decades, the 1938 Rules rested on their laurels. In 1963, Charles Clark, who had been the 1938 reporter, celebrated his project as he sought to deflect efforts to remove the Supreme Court from its role in rulemaking; Clark argued the system had worked. The Rules, "professionally conceived and professionally executed," had permeated "the daily professional life of all lawyers" and garnered no "criticism of major character." (8)

   But criticisms have emerged as the progressive aspirations for simplicity, uniformity, and predictability met the challenges generated by new technologies, transformations in the legal profession, the constitutional and statutory innovations sketched above, and conflicts over norms that the Rules both represent and have engendered. The 1938 Federal Rules came into being not only in the era of segregation but also of mimeographing. Decades away were processes such as photocopying, computing, electronic data storage, and 3D printing, along with employment discrimination class actions, mass tort aggregation, same-sex marriage litigation, and thousand-person law firms.

   Yet Clark and his colleagues reshaped ideas about what federal courts and judges do, how state courts organize their procedures, the ways in which the law is taught and lawyers practice, and who can be litigants. Federal judges gained their shared identity as a national cohort with the same daily practices.

   For litigants, the 1938 Rules were redistributive, providing diverse sets of claimants with access to courts. Clark wrote his hortatory praise when a committee, chartered by Chief Justice Earl Warren, was reviewing the Rules. Benjamin Kaplan, a Harvard Law School professor, was its reporter, assisted by Arthur Miller. (9) Their committee is known for its focus on multiparty litigation and for its signature accomplishment, the revision of Rule 23, governing class actions. The revised Rules paved the way for groups- tenants, consumers, employees, recipients of benefits, school children, and prisoners-to come to federal court.

   The now-national shorthand of the (b)(2) class worked in tandem with the civil rights revolution, for it was expressly designed to enable enforcement of school desegregation decrees. (10) The (b)(3) class brought-as Kaplan explained-new remedies for consumers, bundling small-value claims. (11) The class action rule, intersecting with the judge-promoted multidistrict litigation statute and mass tort defendants entering bankruptcy, shifted expectations, as various forms of aggregation became the norm for diverse kinds of claimants. (12)

   By redistributing access to courts, the Rules undermined the earlier premises of fungible litigants and produced the current understanding that, in a substantial number of cases, governments and corporations would be defendants, charged by individuals or groups with imposing harms. "Plaintiff" and "defendant" became identity-based categories that meant that not all would benefit or suffer equally from the impact of civil rules-a point that repeat players came to understand well. (13)

   What the 1938 Federal Rules also gave litigants and the public was access to information. The asbestos litigation is a "poster case" of discovery's powers and of the impact of public disclosure on debates about liability for harms and the shape of remedies. (14) Thus, at the fiftieth anniversary of the Federal Rules in 1988, Benjamin Kaplan concluded that the Rules

   have worked to considerable (if not universal) satisfaction to support revolutions of the substantive law. The much criticized discovery function and class action remain together the scourge of corporate and governmental malefactors. (15) II. INVESTING IN FEDERAL JUDICIAL POWER

   Congress not only delegated rulemaking power to the judiciary but also endowed federal judges with an array of enforcement powers. Between the 1960s and the 1990s, Congress created hundreds of new federal causes of action, thereby inviting investment of private resources-both funded and pro bono-for enforcement of or to defend against these new rights. Congress added public resources by expanding the Justice Department and other federal agencies, chartering more life-tenured judgeships, inventing (at the behest of federal judges) the position of magistrate judge, adding bankruptcy judges, expanding the numbers of law clerks and other court staff, and authorizing the construction of hundreds of new courthouses.

   During much of the twentieth century, the federal courts were a booming industry. Two...