Procedural Polarization in America?
18 Zeitschrift für Zivilprozess International 303 (2013)
16 Pages Posted: 21 Sep 2016
Date Written: September 20, 2016
Almost everyone knows that political polarization has beset many American institutions. Some claim that the U.S. Congress can't get anything done. Some even say that many members of Congress regard frustrating the President's initiatives as one of their main objectives. Important observers regard the current Supreme Court as more polarized than in the past, though the question whether this should be regarded as "political" polarization may be debated.
It seems that few can escape this escalation of polarization. One activity that might escape it is the process of making procedure rules. In the U.S. federal courts, that process has been somewhat insulated from political pressures, and that insulation has largely been respected in recent decades. Indeed, some have described the American arrangements as reflecting a "treaty" between Congress and the rule-makers. More generally, even though procedural changes occasionally seemed to have major impacts, they have largely been off the radar screen of political actors and the general public in the U.S.
It is possible that this American reality is changing. American procedural changes in the mid-20th century spurred the development of American procedural "exceptionalism." But that development did not attract much attention until the last third of the last century. During that time, however, concern about the level and significance of litigation in the U.S. grew, and what could be called an effort to push back the most aggressive forms of American procedure emerged. As the 21st century dawned, the effort to preserve the exceptional mid -century features of American procedure and the effort to restrain them both gained in vehemence, and also began to attract broader political attention to procedural matters.
This paper reports on these developments in the context of the most recent (and ongoing) set of proposed procedural reforms for the U.S. federal courts. It begins by introducing the seeming mid-century consensus on procedure in the U.S., and then presents the reaction that began in the 1970s to some features of American procedure. Against that background, it sketches prior episodes of procedural reform to introduce the most recent efforts. It then reports on the experience so far of the current reform effort, which has attracted unprecedented attention, including attention from political actors. It concludes with uncertainty. Not only is it uncertain whether the current reform proposals will ultimately go into effect, it is also unclear where procedural reform in the U.S. will go in the future.
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