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Modest Procedural Reform Advances in the U.S.

17 Pages Posted: 30 Mar 2017  

Richard Marcus

University of California Hastings College of the Law

Date Written: March 21, 2017

Abstract

Two years ago, in this publication, I reported on the controversies that attended ongoing efforts to reform civil litigation in the American federal courts to contain and constrain excessive costs, particularly of discovery. At that time, it was uncertain whether the pending package of rule reforms would be adopted by our Supreme Court, and if so whether the Congress might take action to alter the amendments, as could happen under our statutory scheme. More broadly, it was unclear whether the political polarization that has typified both the legislative and executive branches of the US government would begin to intrude into the process of judicial rulemaking. This paper follows up on the report of two years ago. At least some clear answers have emerged. The Supreme Court did adopt the amendment package, the Congress did not alter it, and the rule changes went into effect on 01.12.2015. Some suggest that the rule changes will produce big changes in litigation. For example, an article in the magazine of the American Bar Association (ABA) Section of Litigation described the rule changes as «a whole new ballgame," "a game changer," and "a paradigm shift." Similarly, a prominent American law professor has reacted with an article whose title asks whether the 2015 rule amendments mark the "end of an era." Whether this amendment package really produces "a whole new ballgame," or ends "an era" of American litigation is very much up in the air. But it remains true that the rulemaking apparatus is consensus driven, not polarized, and thus resistant to some features of other parts of the American government.

Suggested Citation

Marcus, Richard, Modest Procedural Reform Advances in the U.S. (March 21, 2017). UC Hastings Research Paper No. 237. Available at SSRN: https://ssrn.com/abstract=2938790

Richard Marcus (Contact Author)

University of California Hastings College of the Law ( email )

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