What Are Courts For? Have We Forsaken the Procedural Gold Standard?

Author:Arthur R. Miller
Position:University Professor, New York University. This Article expands and updates my Alvin and Janice Rubin Lecture delivered at the Paul M. Hebert Law Center, Louisiana State University on March 8, 2017. I have tried to preserve its conversational style. At several points, however, that style did not translate to paper, but the substance of my...
Pages:739-809
 
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What Are Courts For? Have We Forsaken the
Procedural Gold Standard?
Arthur R. Miller*
TABLE OF CONTENTS
Prologue: Reflections ................................................................... 739
I. Early Termination of Cases: The Procedural Stop Signs ............. 746
A. Personal Jurisdiction .............................................................. 747
B. Pleading ................................................................................. 750
C. Class Actions ......................................................................... 753
D. Discovery ............................................................................... 767
E. Expert Witnesses ................................................................... 769
F. Summary Judgment ............................................................... 769
II. The Privatization of Civil Dispute Resolution ............................. 773
III. Related Relevant Procedural Phenomena ..................................... 786
A. Multidistrict Litigation ........................................................... 786
B. Judicial Management ............................................................. 794
IV. Why Has All of This Happened? ................................................. 797
V. Some Final Observations ............................................................. 804
Epilogue ....................................................................................... 809
PROLOGUE: REFLECTIONS
I had the great pleasure and honor of knowing Judge Alvin Rubin. On
occasion, he was my house guest in Cambridge, Massachusetts when I was
on the Harvard Law School faculty. He always arrived with a quart of
shrimp étouffée, which we collaboratively consumed with gusto. I also had
Copyright 2018, by ARTHUR R. MILLER.
* University Professor, New York University. T his Article expands and
updates my Alvin and Janice Rubin Lecture delivered at the Paul M. Hebert Law
Center, Louisiana State University o n March 8, 2017. I have tried to preserve its
conversational style. At several points, however, that style did not translate to
paper, but the substance of my remarks has not been changed. The citations are
designed to be illustrative rather than exhaustive.
740 LOUISIANA LAW REVIEW [Vol. 78
the privilege of arguing cases before him in the Fifth Circuit.1 As a judge,
Alvin had “a profound respect for the law and the limitations it imposes
on judges.”2 His commitment was total. Fellow Fifth Circuit Judge John
Minor Wisdom once described him as someone born to be on the bench.3
My remarks in his memory are personal, at times impressionistic,
reflecting the belief that the aspirational ideas underlying the American
civil justice system are to promote the resolution of disputes on their merits
after an adversarial contest on a level litigation playing field with minimal
technicality. These ideals certainly were the hopes of those distinguished
lawyers and professors who wrote the Federal Rules of Civil Procedure in
the 1930s. The drafters wanted to give people access to a meaningful day
in court and believed that the procedural process should effectuate those
aspirations. The system the rulemakers created was designed with that in
mind, and many believed that the Federal Rules represented a Gold
Standard that envisioned a trial and, when appropriate, one before a jury.
For example, the rulemakers concluded that simplified pleading
opened the courthouse door and promoted adjudicating a dispute on its
merits with a minimum of motion practice. Wide-angle discovery was
intended to give litigants equal access to all information relevant to the
case’s subject matter, which always has seemed very American to me.
How can you be against enabling litigants to be informed? Especially close
to my heart is the class action, perhaps because I participated in drafting
the 1966 revision of Federal Rule 23. It was designed in part to provide a
receptive procedural vehicle for the world of civil rights litigation that
emerged after the 1954 decision in Brown v. Board of Education of
Topeka,4 in part to promote efficiencylitigants get more judicial bang
for their judicial buck when like things are aggregated and adjudicated
togetherin part to achieve consistency of result for all people affected
by the same conduct, and in part to be a mechanism for the joinder of
modest claims that are not economically viable for litigation on an
individual basiswhat, today, are called negative value claims.5 Finally,
1. I once argued an en banc appeal before Alvin and 13 of his colleagues.
None of them asked me a single question during the 30 minutes allotted to me
the Bench’s silence made it a harrowing experience. When I asked him why years
later, he simply said with a twinkle, “I don’t like diversity cases and my colleagues
just wanted to listen to you.”
2. See John Minor Wisdom, Dedication: J udge Alvin Rubin, 52 LA. L. REV.
1371, 1371 (1992).
3. See David W. Robertson, Alvin Rubin’s Last Dissent, 70 TEX. L. REV. 7, 9 (1991).
4. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
5. I have always believed that whatever small claim class actions may lack
in terms of significant individual compensation they often make up for in terms
2018] WHAT ARE COURTS FOR? 741
the Rules were written to be useful for enforcing the public policies
embedded in national and state statutes as well as common-law doctrines,
such as antitrust, securities, civil rights, products liability, and other more
recently developed substantive fields, such as environment, pension
protection, privacy, and consumer rights.
I was blessed by having a wonderful procedure professor, mentor, and
role modelBenjamin Kaplan of the Harvard Law Schoolwho imbued
me with the thoughts I just expressed when I was his student and research
assistant.6 My legal education was followed by an apprenticeship in a law
firm at a time when litigation practice was relatively civilized and it
seemed to me that the Federal Rules were working as they were intended
to work. A few years later, life’s fortuities again brought me together with
Ben, who had been appointed by Chief Justice Earl Warren as the Reporter
of the Federal Rules Advisory Committee of the Judicial Conference of
the United States.7 As a result of a delightful constellation of
circumstances he enticed me to work with him on what a few years later
became the 1966 amendments to those Rules.8
In remembering Judge Rubin and thinking about how best to honor
him, I asked myself whether we are moving toward or away from the
aspirations of my youth, which I know he shared,9 by looking through a
of deterring wrongdoing. See genera lly David Marcus, Flawed but Noble:
Desegrega tion Litigation a nd Its Implicatio ns for the Modern Class Action, 63
FLA. L. REV. 657 (2011).
6. My indebtedness to Ben is recorded in In Memoriam: Benjamin Kaplan,
124 HARV. L. REV. 1345, 135457 (2011). My involvement in what beca me the
1966 Federal Rule amendments is described in Arthur R. Miller, Some Very
Persona l Reflections on the Rules, Rulemaking, and Reporter s, 46 U. MICH. J.L.
REFORM 651 (2013).
7. The congressional delegation of rulemaking authority to the Supreme
Court is set out in 28 U.S.C. §§ 20712073 (2012). T he multi-tiered federal
rulemaking process, its scope, and its difficulties are discussed in Robert G. Bone,
The Process of Making Process: Cour t Rulemaking, Democratic Legitimacy, and
Procedu ral Efficiency, 87 GEO. L.J. 887 (1999); Stephen B. Burbank, The Rules
Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982); Edward H. Cooper, Rule
23: Cha llenges to the Rulemaking Process, 71 N.Y.U. L. REV. 13 (1996); David
L. Shapiro, F ederal Rule 16: A Look at the Theory and Practice of Rulemaking,
137 U. PA. L. REV. 1969 (1989).
8. For what sometimes feels like forever, I have been teaching and writing
about procedure ever since. On days when I am feeling low, I count the number
of times I have taught Pennoyer v. Neff, 95 U.S. 714 (1877) and Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). The final count does not lift my spirits.
9. He was an optimist about the federal courts and their future. See Alvin B.
Rubin, The Role of the Federal Courts in the Next 25 Year s, 39 LA. B.J. 44 (1991).

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