Improving the 1988 and 1990 Judicial Improvements Acts

In this article, Professor Tobias analyzes and attempts to harmonize the conflicting frameworks for civil procedure reform embodied in the Civil Justice Reform Act of 1990 (CJRA) and its immediate predecessor, the Judicial Improvements and Access to Justice Act of 1988 (JIA). Congress intended the JIA to open the national and local rulemaking processes to public scrutiny and to decrease the use of local rules. Yet Professor Tobias finds the 1990 Act at odds with the earlier measure in several ways. By encouraging local experiments aimed at reducing litigation costs and delay, he argues, the CJRA shifted the locus of rulemaking toward the local level and departed from the tenets of simplicity, uniformity, and trans-substantivity which traditionally have underlaid the Federal Rules of Civil Procedure. Moreover, he contends, implementation of the CJRA interrupted promising reform processes started under the JIA. Professor Tobias argues that we can combine the best of the JIA and CJRA by fostering limited local experimentation while achieving most procedural revisions through notice and comment rulemaking at the national level