The Federal Rules of Civil Procedure have attracted much general analysis and comment since their adoption in 1938.1 However, the rich context of common law procedural rules that function in conjunction with the 1938 Rules2 to determine the actual function of the federal district courts has not yet received any systematic analysis and comment. Among these background rules are, for example, heightened pleading requirements, the burdens of production and persuasion, and the doctrine of res judicata. These Other Federal Rules of Civil Procedure Rules are the subject of this article. My thesis is straightforward: The Other Rules interact with the 1938 Rules in such a way as to counter the apparent progressive3 character of the 1938 Rules and produce a functioning system which is not progressive in reality but conservative.4
In Part II, I begin to defend my thesis by presenting a series of core illustrations comparing the content of the 1938 Rules with the content of The Other Rules. I begin with Rule 8, probably the most significant 1938 Rule, and describe Rule 8's broad invitation to access the district court. The key provision is Rule 8(a)(2),5 which asks for only a "short and plain statement of the claim," illustrated by a number of official forms,6 many only one sentence in length. In practice, federal courts almost never receive complaints with only one sentence (or even two or three sentences), suggesting, I argue, that judicial hostility to minimal pleading standards has been powerfully influential and has severely limited access. Thus, the effect of Rule 8 is countered by Other Rules governing access to federal courts.
Next, I discuss the proof-testing process as a second illustration. Rule 50 is the central feature of the proof-testing process and provides for judgment against a party if that "party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party with respect to that issue."7 This controlling language and reference to a "reasonable jury" reveals nothing of the burden of production concept which actually determines outcomes under Rule 50 and which in practice almost always favors the status quo. Rule 56,8 the Summary Judgment rule, employs the same production burden standard with often decisive results, but Rule 56 makes no mention of the concept. Rule 38, Jury Trial of Right, provides that the right to jury trial "shall be preserved to the parties inviolate,"9 but does not describe the burden of persuasion which governs the jury's function and determines the result in close cases, usually in favor of defendants.
Next, I offer the illustration of preclusion. The 1938 Rules speak of bringing litigation to an end only in vague terms. Rule 41, Dismissal of Action, creates a presumption for "adjudication on the merits,"10 an attractive concept to all. Yet serious common law preclusion effects flow from involuntary dismissal under Rule 41(b): claim preclusion and issue preclusion are presumed and can validate results that are obviously wrong, most often punishing mistakes by plaintiffs. Finally, I offer the possible counter illustration of discovery. Some might argue that Rules 26-37 offer proof of the progressive character of the 1938 Rules, but, I argue, this tendency is modest, at best. The discovery rules are available only after access to federal court, and any plaintiff advantage is limited by high cost.
In Part III, as background for further defense of my thesis, I briefly review the history of the 1938 Rules. I begin with then progressive Roscoe Pound's famous 1906 speech to the American Bar Association (ABA) in which Pound argued that a crisis existed in American courts because of archaic procedures. I relate the conservative audience's consternation with his indictment and, later, the ABA's adoption of reform in service of conservative goals. I also recall the ultimate and surprising success of that effort when, in 1934, the Roosevelt administration broke with progressive opposition to the ABA proposal and supported passage of the Rules Enabling Act, which authorized the Supreme Court to prescribe civil rules for federal courts, and their eventual adoption in 1938. …