Making Effective Rules: The Need for Procedure Theory

Abstract

This essay is the published and somewhat expanded version of a presentation to the meeting of the AALS Section on Civil Procedure at the January 2008 AALS annual meeting. The essay argues that effective rulemaking in civil procedure requires not only more empirical work on how procedural rules actually operate in practice, but also more rigorous normative work on how rule choices can be justified in theory. The essay begins with a brief overview of the history of procedural reform, focusing on the Field Code reforms, the 1938 Federal Rule reforms, and the current reform movement that began roughly in the late 1970s. The essay argues that the current movement, in sharp contrast to the two earlier ones, lacks a sense of shared mission and common purpose, and that this normative gap adversely affects the quality of the rule reforms that are implemented. The essay then briefly discusses three fundamental normative issues that are in need of much more careful analysis: (1) the proper way to conceive the relationship between procedure and substantive law; (2) the proper role of settlement in civil adjudication, and (3) the proper way to value individual participation and the participation right.

Keywords: procedural reform, procedure theory, rulemaking, settlement, party participation

JEL Classification: K40, K41