An Old Judicial Role for a New Litigation Era

Abstract

Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role.

There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role.

Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition - and proceed without the litigant input or legal criteria to which they are accustomed - that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.

Note: This is an updated abstract.