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Federal Court Rulemaking and Litigation Reform: An Institutional Approach

38 Pages Posted: 13 Aug 2014 Last revised: 16 Mar 2016

Stephen B. Burbank

University of Pennsylvania Law School

Sean Farhang

University of California, Berkeley

Date Written: 2015

Abstract

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement).

Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.

Keywords: Practice and procedure, courts, politics and ideology of the judiciary, separation of powers, opportunities and incentives for private enforcement, legislation, Federal Rules of Civil Procedure, SCOTUS, empirical research, Civil Rules Advisory Committee

Suggested Citation

Burbank, Stephen B. and Farhang, Sean, Federal Court Rulemaking and Litigation Reform: An Institutional Approach (2015). Nevada Law Journal, Vol. 15, Pg. 1559, 2015; U of Penn Law School, Public Law Research Paper No. 14-26. Available at SSRN: https://ssrn.com/abstract=2478698

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

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