Modes of Procedural Reform

37 Pages Posted: 18 Sep 2016

Date Written: 2008

Abstract

During what has been called the “Golden Age of Rulemaking,” giants trod the soil of rulemaking. Drawing from the legacy of Jeremy Bentham, David Dudley Field, and Roscoe Pound, a small band of drafters created the Federal Rules of Civil Procedure in the late 1930s and changed the American procedural landscape. Their reforms included completing Field's effort to bury technical pleading requirements and adopting a revolutionary set of discovery provisions. More recently, the federal rulemakers' 1966 revision of the class action rule has had at least revolutionary consequences, sometimes in the teeth of what the rulemakers said they wanted to do. As the above description of the most dramatic American experience illustrates, procedural reform can be an exhilarating thing. Because procedural reform appears to be an unending effort in many countries, it seems worthwhile to reflect on the modes of achieving such reforms, for that arguably could affect the content of the reforms. This paper focuses primarily on the American experience to offer a tentative initial inquiry into whether there is a connection between the modes and the nature of procedural reform. The ultimate question is whether the idea merits further comparative study.

Suggested Citation

Marcus, Richard, Modes of Procedural Reform (2008). Hastings International and Comparative Law Review, Vol. 31, 2008, UC Hastings Research Paper No. 196, Available at SSRN: https://ssrn.com/abstract=2839980

Richard Marcus (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4829 (Phone)
415-565-4865 (Fax)

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