Faculty Post: the Fourth Era of American Civil Procedure

By Stephen Subrin, Professor of Law

When I was in law school, I was troubled that my civil procedure professor kept telling us that the Federal Rules of Civil Procedure (“the Federal Rules”), which govern how non-criminal cases are processed in all federal trial courts, were the most enlightened procedural code on the planet. But we were not told a word about how or why they became law in 1938. It was as if these rules descended full blown from heaven.

Frustration can be an impetus for inquiry.  Upon becoming a law professor in 1970, I have spent much of my professional life trying to figure out the historical background of procedural rules – who wants and benefits from procedural change and how do they achieve procedural reform.  And so I wrote the historical background of the Federal Rules and the mid-nineteenth century Field Code (that provided rules for civil cases for over half of the citizens in the country).

With the invaluable help of my former student and frequent co-author, Thom Main ‘94, who now teaches at the William S. Boyd School of Law, U. of Nevada, Law Vegas, and countless NUSL students, I have been working on the historical background of current American civil procedure.  We call this “The Fourth Era of American Civil Procedure.”

Our article will be presented in late November at the Pennsylvania Law School in a conference commemorating the 75th anniversary of the Federal Rules; it will be published in the University of Pennsylvania Law Review. In 1988, a major celebration of the 50th anniversary of the Federal Rules was sponsored by, and took place at, Northeastern University School of Law.

Thom and I argue that federal judges, without going through the congressionally mandated process for promulgating federal procedural rules, have dramatically altered American civil procedure. The original Federal Rules were predicated on themes of simplicity, flexibility, broad attorney latitude, and easy access to the federal trial courts. The current procedural era has become markedly more complex and dramatically curtails access to courts. The original Federal Rules relied on ease of pleading and broad discovery. Current interpretations of the same rules require rigorous pleading, dismissing many cases without any discovery, and the increased use of what is called summary judgment, dismissing many cases after discovery and before trial.  Some of these dismissed cases would have been found meritorious under the original Federal Rules regime. Fewer than two percent of terminated federal civil cases today have ever had any portion of a trial.

How did this happen?  Between the early 1960’s and the next two decades the number of commenced federal civil cases doubled twice. Many federal trial judges felt overwhelmed and actively engaged in efforts to dispose of cases without trial; their techniques to be more efficient in the handling of cases, including the active promotion of settlements, were called ”case management.” During the same period the business community, especially insurance companies, spent millions of dollars for advertisements denigrating trials generally, juries, and plaintiff lawyers. The global turn to embracing the free market and an anti-regulation, anti-government mentality added fuel to this constriction of civil litigation.

Thom and I argue that the severe restrictions on civil litigation do not serve our country well. Since the New Deal, and accelerating in the 1960’s, Congress relied on civil litigation, as opposed to enlarged government, to enforce social-economic norms embodied in a myriad of statutes designed to protect the safety of products and the environment and the integrity of banks and the securities industry, and to prevent employment discrimination. Congress helped create an aggressive plaintiffs’ bar by providing multiple damage awards and fee shifting for successful plaintiff lawyers.  Like the founding fathers of our country, they relied on jurors to protect ordinary people from concentrated power. They assumed that ease of pleading and broad discovery under the Federal Rules would enable effective civil law enforcement. The current era regrettably is the antithesis of such a procedural regime and flies in the face of Congress in two different ways: it is has largely been accomplished through judicial decisions rather than congressional statutes or through amendment of the Federal Rules, and it thwarts the enforcement of congressional acts designed to protect the public.

It is difficult to figure out what to do to change this anti-litigation, anti-rights vindication Fourth Era that has been largely created by the Third Branch. On the positive side, some federal judges are revolting against this anti-trial mentality. It is our hope that many judges have come or will come to regret their evolution to spending so much of their time as business managers, rather than fulfilling their  traditional judicial roles of deciding motions and presiding over trials in open court. More recent economic developments have reduced faith in the unregulated market; behavioral economists have caused rethinking about the rationality of economic actors and the elevation of “efficiency” over other values.

Our article is still a work in progress and what I have written here is a very rough summary of some of our ideas, which require a good deal more nuance. This blog, though, does present some of the major themes we are working on. We welcome the input of our students, faculty colleagues, and others who can help us understand, evaluate, and, if we are correct, alter the Fourth Era of American Civil Procedure.

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