The Federal Rules at 75: Dispute Resolution, Private Enforcement or Decision According to Law?

This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary judgment (“dispute resolution”). The other side defends rules that open litigation to investigation of possible rights: e.g., notice pleading, open and free discovery, and limited summary judgment (“private enforcement”). Both sides focus on process. They overlook the essential goal of civil justice the world over: “to apply the applicable substantive law to the established facts in an impartial manner, and pronounce fair and accurate judgments.” They forget decisions according to law. Abroad we can see systems of civil justice that work, if only we would look. Whereas the heroes of American civil justice, David Dudley Field, Jr., Roscoe Pound, Charles E. Clark, and Edson D. Sunderland, looked abroad for solutions, today’s proceduralists from the private enforcement side tell us to avert our eyes from foreign systems. Why? Supposedly our system in its goals is exceptional. In fact, it is not. We could and should learn from others