Failing Faith: Adjudicatory Procedure in Decline

Abstract

We are approaching the fiftieth anniversary of the enactment of the Federal Rules of Civil Procedure. Reconsideration of the Rules is appropriate for several reasons, not the least of which is to pause in admiration of a formidable accomplishment. For members of my generation, who grew up in law with rules that assume the desirability of nontechnical approaches to procedure, it is easy to ignore the tremendous contribution that the Rules have made to our thinking. Hence praise, accolades, and affection are due the group which created the Federal Rules of Civil Procedure. But this is not simply a time for rejoicing at a prior generation's achievements. Many in the legal profession now criticize aspects of the Rules and demand revision. Critics claim that the federal courts are in "crisis" and argue that some of the current problems are properly charged to decisions made fifty years ago, including reliance upon one trans-substantive set of rules for all kinds of cases, upon minimal pleading requirements, and upon discovery as a technique for issue identification. Many of the critics hope to limit what they perceive to be an avalanche of litigation and an unrestrained exploitation by litigants and attorneys of the procedural opportunities made available by the Rules.