The Legislative Role in Procedural Rulemaking Through Incremental Reform
58 Pages Posted: 28 Apr 2019 Last revised: 14 Sep 2019
Date Written: June 1, 2019
Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress’s policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature proposed scaling back access to remedies in courts in almost every type of case. These bills — while seemingly “procedural” — have the potential to shape individual rights and remedies, incentives to sue, and the costs of litigation.
The Article uses an institutional incremental approach to viewing legislative procedural law change. It examines both historical and current legislative efforts at litigation and procedural reform, identifying “major” and incremental policy proposals. Viewing legislative litigation reform in this light reveals that the legislature has taken an active role in the development of procedural law and retrenchment of court access, not just through major reform legislation, but through small, targeted actions that can have great effects over time. This Article then provides observations on the character and efficacy of legislative procedural reform. Unlike procedure generated from the court-centered REA process, incremental legislative procedure is often targeted to, and motivated by, altering remedies in a particular substantive area, nontransparent, and unmoored from adjudication and practice-based normative values. The history suggests that procedural scholars should rethink the legislative role in shaping the adjudicatory process.
Keywords: Litigation, Regulation, Litigation Reform, Legislation, Congress, Practice and Procedure, FICALA, H.R. 985, Class Action, MDL, Rule 23, Innocent Party Protection Act, LARA, Rule 11
JEL Classification: K4, K41, Z18
Suggested Citation: Suggested Citation