The Roberts Court and the Civil Procedure Revival

40 Pages Posted: 27 Feb 2012

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

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Date Written: February 1, 2012


In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions — the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases already decided or coming up in the October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

Keywords: John G. Roberts, Federal Rules of Civil Procedure, Judicial Review, Supreme Court of the United States, Federal Courts, Rulemaking, Congress, Roberts Court, Rules Enabling Act (REA) Process,

Suggested Citation

Wasserman, Howard, The Roberts Court and the Civil Procedure Revival (February 1, 2012). Review of Litigation, Vol. 31, No. 2, 2012, Florida International University Legal Studies Research Paper No. 12-01, Available at SSRN:

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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