VOLUME 162, ISSUE 7 June 2014

"I imagine that many law students who arrive here at this famous law school in Philadelphia, the city that hosted our nation’s Constitutional Convention, dream of litigating epic constitutional cases before the United States Supreme Court. For the students here, perhaps learning the Federal Rules of Civil Procedure may not be very high on your priority list, but you will find out—as I found out—that command of procedure is essential to a litigator’s prowess.

"More broadly, the way we fashion procedure is pivotal to the quality of justice our system provides. Supreme Court Justice Abe Fortas said it well when he wrote that, “Procedure is the bone structure of a democratic society.”1 I’m going to ask you to remember two things from this speech. That’s the first one: '[p]rocedure is the bone structure of a democratic society.' In short, procedure is power."

On this seventy-fifth birthday of the Federal Rules of Civil Procedure, it is worth noting that the Rules are that rare public document that contains within its text the very metric for measuring its own success. Contrast, for example, the U.S. Constitution, which aims “to . . . secure the Blessings of Liberty to ourselves and our posterity”—an outcome not easily measured. But the Federal Rules say simply—in a phrase I first heard on my first day studying civil procedure—that they shall be construed and administered to achieve “the just, speedy, and inexpensive determination of every action.”

I have puzzled over this phrase during more than thirty years of teaching procedure: I spent twenty representing human rights plaintiffs, ten years in the U.S. Government, usually representing defendants or amici in international and foreign relations disputes, and five years as a law school dean, considering how the legal academy should teach both procedure and globalization.

This anniversary raises three questions: First, after seventy-five years of these Rules, have the Rules satisfied their own standard? Second, if they have not, why not? And third, what does the future hold for the Rules, particularly as they face the challenge of globalization?

This Article is part of an ongoing study of the behavior of American political institutions, including courts, with respect to federal civil litigation. We are particularly interested in litigation that involves statutory private enforcement regimes and other legal provisions that predictably affect incentives and opportunities for access to federal court to enforce federal rights. We believe that, in order to understand the modern history of federal law that affects private enforcement and access to court with respect to federal rights (collectively, “private enforcement”), it is necessary to view the salient events in their institutional context, recognizing that the institutions involved are competing to regulate social and economic life in the United States. As part of our inquiry into how interactions and competition among institutions have produced the contemporary state of federal civil litigation—and in recognition of the seventy-fifth anniversary of the Federal Rules of Civil Procedure—we consider ways in which the federal judiciary has affected private enforcement through control of procedure.

Attorneys’ fees fuel litigation, yet little is known about fees. Fee data are rarely available in the United States or in English rule, loser-pays jurisdictions. This Article analyzes fee awards in Israel, which vests judges with discretion to award fees, with loser pays operating as a norm. The 2641 cases studied constitute nearly all cases terminated by judgment in district courts in 2005, 2006, 2011, and 2012. Given many fee denials and fees that are well below client payments to attorneys when awarded, the Israeli fee system could reasonably be characterized as being more American than English. Moreover, judges use their discretion in a manner that reflects redistributive sensitivity. Fees were awarded to prevailing parties in 72.8% of cases. Judges often exercised their discretion to protect losing litigants, especially individuals, from having to pay fees. In tort cases won by individuals against corporate defendants, corporations paid their own fees plus plaintiffs’ fees in 99% of the cases; corporate defendants that prevailed in such cases paid their own fees 48% of the time. Asymmetry between plaintiffs and defendants existed. In cases with fee awards, the mean and median fee paid to prevailing plaintiffs was 110,000 shekels (NIS) and 31,000 NIS, respectively; the mean and median fee paid to prevailing defendants was 49,000 NIS and 25,000 NIS, respectively. Plaintiffs prevailed in 54.8% of cases between individuals but received 90% of the fees. Expected award amounts varied by case category and party status. Fees were significantly correlated with damages recoveries in plaintiff victories and with time on the docket. In contract and property cases, but not in tort cases, fees declined as a percent of recovery as the recovery increased.

It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside.

In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that unfairly and unreasonably burdens plaintiffs—perhaps even violating the right to a civil jury trial guaranteed by the Seventh Amendment.

As litigation has more than one side, there is, of course, an opposing view—namely that invigorated summary judgment practice simply and efficiently substitutes an early dispositive motion for the substantial and pointless costs of going through the trial motions in a meritless suit. But even this positive position concerning efficiency has been contested. As Samuel Issacharoff and George Loewenstein have suggested, liberalized summary judgment practice might affect the parties’ returns from settlement in cases that otherwise would settle early in the litigation process. If liberalized summary judgment eliminates enough early settlements, then it might actually increase the net costs of administering the federal civil justice system: even if fewer cases get past summary judgment, perhaps more cases get to summary judgment. One scholar has even asserted that, as a practical matter, the costs of civil litigation would fall if we abolished summary judgment altogether.

It is a pleasure to contribute to this celebration of the seventy-fifth anniversary of the Federal Rules. As one who has been something of a rulemaking insider for over twenty percent of the seventy-five years since the Federal Rules came into effect, I suppose I incline towards being an apologist—at least regarding recent developments.

I intend to focus mainly on the introduction and evolution of broad discovery. In part, that’s because discovery has been an almost constant focus of rulemaking for forty years and also is the most acute pressure point in the acidic relations the United States has had with the rest of the world due to distinct procedural arrangements. In addition, our broad discovery can serve as an avatar for the most aggressive visions of the peculiar American institution of private litigation as a force for good or evil. Not surprisingly, my general view is that the rulemakers have sought (fairly successfully) to steer a middle course between the most aggressive supporters and critics. Today, though, it may be that Silicon Valley is the source of greater challenges for discovery rules than either camp of critics.

With the possible exception of John Marshall, the Justice most frequently quoted by legal scholars is almost certainly Oliver Wendell Holmes, Jr. Following that practice, I begin with an appropriate Holmesian injunction: our “business as thinkers is to make plainer the way from some thing to the whole of things.”1 Accordingly, the purpose of this Article is to suggest that recent Supreme Court decisions construing three Federal Rules of Civil Procedure “make plainer” some salient aspects of a particularly important “whole”—namely, the jurisprudence of the Rehnquist and Roberts Courts.

To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal Rules—to engage in a merits-based analysis at the pleading stage based on their “judicial experience and common sense.” Judges are expected to engage in this inquiry with only the factual allegations in the complaint at their disposal. Putting aside the difficulty of conducting this analysis under the best of circumstances, our federal judges have extremely limited judicial experience to apply to merits-based decisions. The number of trials, the ultimate arbiter of merit, has fallen precipitously in the past fifty years. Trials have been replaced by settlements (the terms of which are often secret, even to the judge handling the case), alternative dispute resolution (with outcomes that judges may review only for arbitrariness, if they review them at all), and summary judgment (a poor substitute for trial). With these gaps in judicial experience, a judge is left to compensate with “common sense,” relying on heuristics that may interfere with accurate decisionmaking.

The normative goals of the 1938 Federal Rules facilitated a reconceptualization of federal adjudication by welcoming into court a diverse array of persons who, as the century unfolded and equality mandates expanded, became rights-holders. As a consequence, courts came to serve as venues for democratic debates about rights and remedies. Seventy-five years later, that egalitarian project has contracted, and the Federal Rules have been refocused on management and judge-based settlement efforts.

That privatizing of process inside courts, as well as the devolution to agencies and outsourcing to private providers, is promoted by official voices within the federal judiciary. These new procedural forms close off public access by siting dispute resolution outside the public sphere. Not only are potential claimants losing knowledge of alleged injuries and the modes of redress, but these privatizing procedures undermine rationales for public and private investments in the lower federal courts. In 1995, the federal judiciary’s Long Range Plan worried about the nightmare of ever-expanding filings and vanishing trials. By 2014, data on filings and investments showed flattening rates of filing, reductions in courthouse space, and tightening budgets. While the Long Range Plan’s aspirations to control growth may be coming to fruition, the planners’ hopes of preserving the federal courts as lively venues, hospitable to diverse claimants trying cases, are not being fulfilled. Absent changes in rules, doctrines, and practices, the federal courts—like the 1938 Federal Rules—are moving into a decline and, with them, opportunities for public debates about the contours of legal norms.

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in the midst of what should be labeled a new era—the fourth in the history of American civil procedure. The first three eras are rather conventional: the first era began with the country’s founding; the second era began in the middle of the nineteenth century with the introduction of code pleading; and the third era commenced in 1938 with the Federal Rules of Civil Procedure.

A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The sentiment reflects the equity roots of the representative class proceeding—a history that has been thoroughly investigated by leading scholars in the field of civil procedure, structured the work of the committee that drafted modern Rule 23, and has repeatedly been embraced by the Supreme Court as a necessary starting point when interpreting and applying the Rule in modern practice. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or thorough exposition of the question, and the scholarly literature has not provided a sustained analytical treatment.