Abstract

http://ssrn.com/abstract=2360272
 
 

Citations (1)



 


 



Litigation Reform: An Institutional Approach


Stephen B. Burbank


University of Pennsylvania Law School

Sean Farhang


University of California, Berkeley

2014

University of Pennsylvania Law Review, Vol. 162, P. 1543, 2014
U of Penn Law School, Public Law Research Paper No. 13-28

Abstract:     
The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench private enforcement, particularly in the last decade. The Federal Rules of Civil Procedure became for a brief time the lawmaking territory in which a newly assertive institutional judiciary sought to forge instruments of retrenchment, but the ensuing controversies quickly animated interest groups and members of Congress who were protective of the procedural status quo to press successfully for changes in the Enabling Act process that limited rulemakers’ capacity to change the Federal Rules. Rulemaking is not, however, the only way that the judiciary can influence private enforcement. Federal Rules afford ample room for interpretation, and they can be effectively amended by the Supreme Court outside the Enabling Act process. Empirical analysis of the Court’s Federal Rules decisions confirms that, in this domain as well, the campaign to retrench private enforcement has had its greatest success in the courts. Indeed, it may be that the success experienced in the Supreme Court affected both the content and the zeal of the legislative campaign for civil litigation reform. Thus, although the issue of litigation reform in general, and procedure as a tool of litigation reform in particular, has been declining in Congress since the mid-1990s, it is at its highest level ever on the Court.

Number of Pages in PDF File: 76

Keywords: Courts, practice and procedure, politics, Federal Rules of Civil Procedure, Rules Enabling Act, restrictions on private enforcement of legislation, judicial amendment, interpretive amendments, SCOTUS, litigation reform, empirical research, quantitative evidence of the power of procedure, ideology

Accepted Paper Series





Download This Paper

Date posted: November 29, 2013 ; Last revised: September 13, 2014

Suggested Citation

Burbank, Stephen B. and Farhang, Sean, Litigation Reform: An Institutional Approach (2014). University of Pennsylvania Law Review, Vol. 162, P. 1543, 2014; U of Penn Law School, Public Law Research Paper No. 13-28. Available at SSRN: http://ssrn.com/abstract=2360272

Contact Information

Stephen B. Burbank (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Sean Farhang
University of California, Berkeley ( email )
310 Barrows Hall
Berkeley, CA 94720
United States
Feedback to SSRN


Paper statistics
Abstract Views: 701
Downloads: 185
Download Rank: 98,223
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.282 seconds