Against (Mere) Restyling

Abstract

The Federal Rules of Civil Procedure have been completely rewritten. Unless the Supreme Court balks or the Congress intervenes, the bench and bar will be using the new restyled version of the Federal Rules of Civil Procedure in a little more than a year.

As have other procedural reformers before them, the restylists seek to make procedural rules simpler, clearer, more accessible, and easier to understand. Yet the restylists have set themselves a goal that is at once insufficiently ambitious and overly difficult. Unlike prior reformers, they do not seek to create a better procedure. Unlike those who brought us the original Federal Rules of Civil Procedure, they do not seek to supersede reexisting statutory procedures. To the contrary, the restylists attempt to completely rewrite the Federal Rules of Civil Procedure while leaving the law of procedure the same as it was before their reform.

This task is nearly impossible, as this Essay illustrates with some examples drawn from the changes made to the proposed restyled rules in response to public comment. In addition, the goal of preserving existing meaning is at war with the goal of clarity and simplicity. Rather than confront this dilemma head on, the proposed restyled rules add an additional layer of ambiguity, and do so in a way that brings to the fore the interpretive battle that rages between those who follow the plain meaning of the text and those who seek the lawmakers' purpose in legislative history. Finally, although the restylists have attempted to prevent their handiwork from superseding statutory procedures, their method of doing so rests on a view of the supersession provision of the Rules Enabling Act that is almost certainly wrong.

For these reasons, the proposed restyled Federal Rules of Civil Procedure should not be approved.

Keywords: Federal Rules of Civil Procedure, Restyling, Civil Procedure, Supersession

JEL Classification: K41