The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change

Abstract

We have been asked to look forward—to procedure in the twenty-first century. But I think we need to look back first to understand a little bit about where we have been in the last few decades before we can discuss even where we are, let alone where we are going. Much of the commentary over the last day and a half has posited a procedural world that, at least from the vantage point of those who taught civil procedure, appeared—up until very recently—to be fairly tidy. One seemed to know who the "players" were and who made the rules. Reading the Rules Enabling Act of 1934, one spoke of judicial control of rulemaking. One described how the Supreme Court promulgated the Federal Rules of Civil Procedure and how the heart of the drafting occurred within the committees of the Judicial Conference of the United States, particularly the Advisory Committee on the Civil Rules. We also thought we could describe the rulemakers' aspirations—access, efficiency, the focus on the merits—even as we had to acknowledge the invisibility of much of their work. While the 1988 amendments to the Rules Enabling Act added a window into the process of rulemaking (by making meetings open and enabling spectators to watch procedural rulemaking,) those amendments did not reformulate the process of rulemaking in major respects. Finally, the 1938 rules were "trans-substantive" (one set of rules across a wide variety of substantive areas) and uniform (one set of rules for the nation).