Making State Civil Procedure
101 Pages Posted: 26 Mar 2018 Last revised: 26 Jan 2019
Date Written: March 22, 2018
State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse.
In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible.
Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys.
State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is.
This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article helps ensure that relevant information is not limited to those with privileged access and the resources to use it.
Keywords: Twombly, Iqbal, Wal-Mart, State Courts, Civil Procedure, Public Law, Federal Procedure, State Courts, Litigation, rulemaking, FRCP, State Procedure
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