Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure

37 Pages Posted: 11 Oct 2017

See all articles by Stephen Subrin

Stephen Subrin

Northeastern University - School of Law

Thomas O. Main

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2016

Abstract

We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. These amendments and changes, even if subtle and incremental, launched a new era—the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon. In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. Yet this Article urges states to resist the siren song of uniformity in favor of more noble pursuits.

The occasion for this Article is the most recent wave of amendments to the Federal Rules which included (i) the abrogation of Rule 84 and the forms; and (ii) the incorporation of proportionality into the scope of discovery. Although these amendments, like many that preceded them, restrict litigants’ access to court and also to evidence, it is not obvious that these amendments are especially consequential. Such is the nature of incremental reforms that are significant only when viewed cumulatively and retrospectively. But Chief Justice Roberts described the amendments as effecting a “significant change, for both lawyers and judges, in the future conduct of civil trials.” Accordingly, this seems like an appropriate time to consider the extent to which states do and should replicate federal procedure.

The article conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.

Keywords: FRCP, Civil Procedure

Suggested Citation

Subrin, Stephen and Main, Thomas O., Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (2016). Case Western Reserve Law Review, Vol. 67, No. 2, pp. 501 - 536 (2016); Northeastern University School of Law Research Paper No. 301-2017; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3051389

Stephen Subrin (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Thomas O. Main

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
702-895-2927 (Phone)
702-895-2482 (Fax)

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