Politics and Civil Procedure Rulemaking: Reflections on Experience

By Carrington, Paul D. | Duke Law Journal, December 2010 | Go to article overview
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Politics and Civil Procedure Rulemaking: Reflections on Experience

Carrington, Paul D., Duke Law Journal


This Article is a reflection on personal experience as well as an account of what has happened to the Federal Rules of Civil Procedure in the most recent quarter century. It observes that the Supreme Court of the United States has assigned to itself a role in making procedural law inconsistent with the Rules Enabling Act of 1934 or any more-recent utterance of Congress. This procedural law made by the Court is responsive to the desire of business interests to weaken the ability of citizens to enforce laws enacted to protect them from business misconduct. The Article concludes with the suggestion that Congress should now act to constrain the role of the Court and restore the ability of citizens to enforce their rights in civil proceedings in federal courts.


  I. Introduction: A First-Person Perspective

  II. The State of Federal Law in 1985
      A. Federal Judicial Dockets
      B. The Relation of 1985 Dockets to the 1934 Act and
         Private Enforcement of Public Law
      C. The Deregulation Movement
      D. The Cost of Law Enforcement: Discovery
      E. The 1983 Amendments
      F. A Personal Experience: The Role of the Reporter

 III. Substantial Political Issues Confronted in Rulemaking:
      A. Issue 1: Congress and the Rules Enabling Act
         1. Proposals for Reform
         2. Politicization and Transsubstantivity
         3. Lobbying for Supersession
      B. Issue 2: Belated Amendment to Correct the
      Identification of a Defendant
      C. Issue 3: Rule 48 and Trial by Jury

  IV. Reforming the Discovery Rules: Mandatory Disclosure
      A. The Text of Rule 35
      B. Localization
      C. Discovery Costs
      D. The Task Force on Civil Justice: Justice for All
      E. The Idea of Mandatory Disclosure
      F. The Council on Competitiveness
      G. Empirical Evaluation of Mandatory Disclosure
      H. Other Limitations: Rules 16, 30, and 33
      I. My Personal Immortality
      J. The Continuing Dispute over Disclosure

   V. Rule 4 and Service of Process Abroad
      A. Formalities of Service
      B. The Hague Convention and Formalities of
         Service Abroad
      C. Revision by the Court at the Suggestion of the
         British Embassy

  VI. The Hague Evidence Convention
      A. The Aerospatiale Case
      B. An Effort to Accommodate the Court's Opinion and
         the Convention in Rule 26

 VII. Rule 11 Sanctions
      A. Abuses of Rule 11
      B. Reforming Rule 11
      C. Inherent Judicial Power

VIII. The Supreme Court's Role as Procedural Lawmaker:
      Rules 56 and 8
      A. Rule 56: The 1986 Trilogy
      B. Revising Rule 56?
      C. The Decision to Amend Rule 50 but Not Rule 56
      D. Twombly: The Supreme Court Rewrites Rule 8
      E. Substance, Not Mere Procedure? Consequences for
         Antitrust Law Enforcement
      F. The Role of the Court in Legislating New
         Pleading Rules
      G. Substantive Political Consequences
      H. Next Comes Iqbal
      I. Up with Deregulation! Down with Private
         Law Enforcement!
      J. Down with the Rulemaking Process?
      K. Consequences for State Law Enforcement

  IX. Compare the Federal Arbitration Act of 1925
      A. Arbitration Law as Written by Congress
      B. The Court Rewrites the Act
      C. Rewriting Rules of Evidence
      D. A Captured Court

   X. Prescriptions


This Article protests the lack of respect shown by the Supreme Court of the United States for the political process devised in 1934 by all three branches of the federal government to better suit rules of civil procedure to the protection and enforcement of legal rights in civil proceedings. Under that 1934 law, (1) the Court has a specific but limited role in rulemaking. Congress also has a role. So do the Judicial Conference of the United States (Judicial Conference), and, at least indirectly, the Executive Branch.

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