The Counter-Reformation in Procedural Justice

67 Pages Posted: 29 Jan 2013

Date Written: January 1, 1992


In 1990, Congress enacted the Judicial Improvements Act, an omnibus bill that created ninety-four amateur rulemaking groups throughout the entire federal judicial system. In Title I, the Civil Justice Reform Act, Congress commanded these advisory groups to formulate civil justice expense and delay reduction plans by the end of 1993. In addition, Congress ordered the Judicial Conference to designate ten federal courts as pilot districts, which were required to expedite their reform plans and complete them by December 31, 1991. In the Judicial Improvements Act, Congress served notice that it was going to have civil justice reform and have it immediately.

The Civil Justice Reform Act of 1990 is fomenting a nationwide procedural revolution that is probably unparalleled since the enactment of the Federal Rules of Civil Procedure in 1938. The Act mandates local, grassroots rulemaking by civilian advisory groups, a novel process that essentially circumvents the usual judicial advisory committee system for civil procedure rule reform that has been in place since 1938. In this respect alone the Act is revolutionary.

The central importance of the Civil Justice Reform Act is this: the Act has effected a revolutionary redistribution of the procedural rulemaking power from the federal judicial branch to the legislative branch. Congress has taken procedural rulemaking power away from judges and their expert advisors and delegated it to local lawyers. By the expedient of declaring procedural rules to be substantive law, Congress has effectively repealed the Rules Enabling Act. Congress has by fiat stripped the judicial branch of a power that uniquely bears on the judicial function: the power to prescribe internal rules of procedure for the federal courts. By legislative stealth in enacting the Civil Justice Reform Act, Congress is continuing to transform the Advisory Committee on Civil Rules into a quaint, third-branch vestigial organ.

The implications of this unheralded revolution will be dramatic and widespread for years to come. At the most pragmatic level, the grassroots local advisory groups are destined to create problematic local rules, measures, and programs. Although this “bottom up” approach to rulemaking is theoretically laudable, it can also be viewed as a politically cynical way of magically conferring a democratic patina on a rulemaking process that is not truly locally inspired, but federally orchestrated by Washington. Furthermore, local amateur rulemaking groups, however intelligent, diligent, and well-intentioned, are ill-equipped to perform the basic tasks the Act requires, such as conducting docket assessments and evaluating the reasons for cost and delay in the district. Bad social science will form the basis for bad rulemaking.

This vast experiment in local rulemaking will undermine the procedural reform that promulgation of the federal rules effected in 1938. Judge Clark aptly captured the aesthetic of that first procedural reformation in his Arnstein dissent: careful, informed study that leads to the adoption and amendment of simple rules that are uniform throughout the country. The reforms the Civil Justice Reform Act mandates are not conducive to careful, informed study of the Federal Rules of Civil Procedure. Further, it is doubtful that the Act's requirements will lead advisory groups to recommend simple rules. Instead, with its statutory emphasis on increased judicial management of litigation, the Act encourages (if not requires) a proliferation of increasingly complex and specific local rules.

The Civil Justice Reform Act is at war with the concept of uniform procedural rules throughout the federal district courts. The Act instead directly contributes to an increased balkanization of federal civil procedure, a process that began with Federal Rule of Civil Procedure 83, which authorizes the creation of local rules. What began as an aesthetic of procedural simplicity has been transformed, over fifty years, into a reigning reality of procedural complexity. Today, federal practice and procedure is impossibly arcane.

A federal practitioner must now know, in addition to the Federal Rules of Civil and Appellate Procedure, the existing local rules of ninety-four district courts and eleven federal circuits. The practitioner simply cannot know the procedures of any other federal district without looking them up, just as an out-of-state practitioner must research the rules of a foreign jurisdiction. As a consequence of the Act, the practitioner's life will now be further complicated by the overlay of new rules, measures, and programs promulgated and implemented on the recommendation of ninety-four local advisory groups.

Incredibly, in addition to all this procedural babel, the Federal Advisory Committee on Civil Rules remains in existence, currently drafting further revisions to the general federal rules, a task that parallels the work of the local advisory groups. With regard to the proliferation of rulemakers, one is reminded of the old Abbott and Costello joke “Who's on first?” Whatever may be said for the democratic process, it should be abundantly clear to any observer of the rulemaking scene that there are now too many procedural cooks. What the relationship among all these rulemaking bodies and their resulting rules will be poses an interesting academic question. For the average lawyer and potential federal litigant, however, what procedural rules govern in any given federal court is a pointed real-life dilemma. Procedural rules govern court access, shape the structure of lawsuits, and significantly influence the course of pretrial proceedings.

Finally, the Act authorizes unconstitutional rulemaking, violates the separation of powers doctrine, and arrogates to Congress unprecedented authority over federal procedure. The Civil Justice Reform Act should be understood as an alarming intrusion by Congress-made without adequate legal or empirical foundation-into the judiciary's internal housekeeping affairs. This intrusion strips the judicial branch of its important function of procedural rulemaking. Unless and until the Civil Justice Reform Act is challenged as an unconstitutional delegation of rulemaking authority, federal courts will be subjected to varying popular local whims relating to court access and procedure.

My thesis is simple: The Civil Justice Reform Act revokes the Rules Enabling Act and authorizes unconstitutional rulemaking. The Act violates the separation of powers doctrine and substantially impairs the ability of the federal courts to control their internal processes and the conduct of civil litigation. Congress is simply wrong in declaring that it has exclusive federal rulemaking power. What Congress has taken from the judiciary in the rulemaking process the federal courts should take back, before federal rulemaking and civil litigation become irretrievably balkanized and politicized.

The legal dimensions of this thesis, dealing with the constitutional basis of the Civil Justice Reform Act, the statutory limits of the Rules Enabling Act, and separation of powers doctrine, are developed in a companion article that appears later in this Volume of the Minnesota Law Review. The present Article, which lays the factual groundwork for demonstrating the legal insufficiency of the Act, has a two-fold purpose: it captures the Act's radical nature and the counter-reformation in procedural justice it represents, and describes the legislative process that led to its enactment.

Using this Article's factual background, the companion Article will address constitutional and statutory problems relating to the Civil Justice Reform Act. It will discuss the underlying theory of rulemaking allocation embodied in the Rules Enabling Act and the doctrinal precedents construing that statute. It will also analyze the separation of powers doctrine as it relates to the allocation of substantive and procedural rulemaking authority between the legislative and judicial branches.

The combined thesis of this Article and the companion piece is that the Rules Enabling Act must be read to allocate procedural rulemaking authority to the judicial branch. Under no circumstances can that Act be read to confer procedural rulemaking authority exclusively on Congress. Congress, therefore, has overruled, sub silentio, the Rules Enabling Act through the Civil Justice Reform Act. The Senate's interpretation of the Rules Enabling Act inverts the usual understanding of that Act, and transforms it from enabling to disabling legislation. Further, this attempt to strip the judicial branch of its procedural rulemaking authority under the guise of “substantive effects” violates the separation of powers doctrine, which commits control over internal court housekeeping affairs, including the promulgation of procedural rules, to the judiciary.

Although this Article centers on the factual bases underlying the Civil Justice Reform Act and its companion Article deals with constitutional and statutory arguments relating to allocation of civil procedure rulemaking authority, this Article ends with some brief observations as to why, as a matter of policy, procedural rulemaking authority ought to be vested in the judicial, rather than the legislative, branch. It therefore revisits the overarching theory of the Federal Rules of Civil Procedure, as well as the debate surrounding the relative fairness, competency, and efficiency of the respective bodies to promulgate procedural rules.

This Article concludes that the Act ought to be repudiated as a noble but ill-conceived piece of legislation that will produce more harm than good for civil justice in this country. Civil procedural rulemaking ought not to be in the hands of ninety-four local amateur rulemaking groups who are destined to wreak mischief, if not havoc, on the federal court system. Procedural rulemaking should be restored to the federal judiciary, to be accomplished in slow and deliberative fashion by procedural experts through the existing Advisory Committee system.

Keywords: Civil Justice Reform Act of 1990, Congress, Rules Enabling Act, rulemaking, Advisory Committee on Civil Rules, delegation of authority

Suggested Citation

Mullenix, Linda S., The Counter-Reformation in Procedural Justice (January 1, 1992). 77 Minn. L. Rev. 375 (1992), U of Texas Law, Public Law Research Paper No. 292, Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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