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

Maxeiner, James R.

doi:10.1007/978-3-319-21981-3_5

James R. Maxeiner⁵

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 48))

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Abstract

This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure. The designation essay is deliberate. This essay is a wake-up call to American proceduralists to acknowledge what they all know: the Federal Rules of Civil Procedure fail to fulfill the fundamental goal of civil procedure just about everywhere: apply law to facts to determine rights and decide cases. Because the rules of procedure of American states largely follow the Federal Rules, the federal failure is a national failure. Some American proceduralists excuse this failure by asserting that the rules fulfill other “dynamic” goals. The essay is consciously polemical. It assumes failure is a given. In my book, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011), I document that failure. Skeptics are invited to consult that book.

© James R. Maxeiner, 2014. Associate Professor of Law, University of Baltimore School of Law. J.D. Cornell; LL.M. Georgetown; Ph. D. in Law (Dr. jur.) Munich. I would like to thank for support and encouragement Philip K. Howard, President of Common Good and author of The Rule of Nobody: Saving America from Dead Laws and Broken Government (2014). I also acknowledge the support of a University of Baltimore School of Law summer research stipend. This essay originally appeared in 30 Ga. St. L. Rev. 983 (2014).

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Notes

1.
Alan Uzelac, Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems 3 (Ius Gentium, vol. 34, 2014).
2.
Robert G. Bone, Improving Rule 1: A Master Rule for the Federal Rules, 87 Denv. U. L. Rev. 287, 290 (2010).
3.
See James R. Maxeiner, Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, a Day in Court and a Decision According to Law, 114 Penn St. L. Rev. 1257, 1261–62 (2010); Jay S. Goodman, On the Fiftieth Anniversary of the Federal Rules of Civil Procedure: What Did the Drafters Intend?, 21 Suffolk U. L. Rev. 351, 360–61 (1987).
4.
Elwood Hutcheson, The New Federal Rules of Civil Procedure, 13 Wash. L. Rev. & St. B. J. 198, 198–99 (1938).
5.
David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, 59 DePaul L. Rev. 371, 389–92 (2010). Cf. Jeremy Bentham, Scotch Reform 60 (1808) (“without a body of substantive law to stand upon, a system of pleading is a superstructure without a foundation”) [emphasis in original].
6.
See Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901, 1907–08 (1989).
7.
See Rex R. Perschbacher & Debra Lyn Bassett, The Revolution of 1938 and Its Discontents, 61 Okla. L. Rev. 275, 286–87 (2008).
8.
Id. (identifying the goals of federal litigation as evolving from “deciding cases on the merits to merely disposing of cases as expeditiously as possible”).
9.
Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 911–12, 974 (1989) (describing concerns over excessive costs and delays and discovery abuses raised at the 1976 Pound Conference).
10.
Jay Tidmarsh, Resolving Cases “on the Merits,” 87 Denv. U. L. Rev. 407, 408 (2010).
11.
Perschbacher & Bassett, supra note 7, at 291.
12.
See Tidmarsh, supra note 10, at 408.
13.
See Perschbacher & Bassett, supra note 7, at 291.
14.
Fed. R. Civ. P. 1.
15.
Md. Decl. of Rights art. 19. Other states adopted similar declarations. See, e.g., Mass. Const. pt. 1, art. 11 (“Every subject of the commonwealth ⋯ ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”).
16.
Conn. Const. art. 1, § 10 (“All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”); R.I. Const. art., 1 § 5 (“Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws.”).
17.
U.S. Const. amend. V (“No person shall ⋯ be deprived of life, liberty, or property, without due process of law”).
18.
Richard L. Marcus, Modes of Procedural Reform, 31 Hastings Int’l & Comp. L. Rev. 157, 164 (2008).
19.
See infra note 234.
20.
See, e.g., Richard Marcus, “American Exceptionalism ” in Goals for Civil Litigation, 34 Ius Gentium 123, 139–40 (2014) [hereinafter Marcus, American Exceptionalism].
21.
See infra Sect. 5.2.
22.
See infra Sect. 5.3.
23.
See infra Sect. 5.4.
24.
See infra Sect. 5.5.
25.
Harold H. Koh, Keynote Address: “The Just, Speedy, and Inexpensive Determination of Every Action?”, 162 U. Pa. L. Rev. 1525, 1526 (2014).
26.
See, e.g., Law School Celebrates the 75th Anniversary of the Federal Rules of Civil Procedure, University of Cincinnati College of Law, http://www.law.uc.edu/news/75th-anniversary-federal-rules-of-civil-procedure (last visited Apr. 24, 2014); Renowned Scholar Arthur R. Miller and Distinguished Panel to give 18th Annual Pedrick Lecture, “Revisiting the Rules: Celebrating 75 years of the Federal Rules of Civil Procedure,” Arizona State University Sandra Day O’Connor College of Law (Feb. 20, 2014), http://www.law.asu.edu/News/CollegeofLawNews/TabId/803/ArtMID/7835/ArticleID/4642.
27.
Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in the United States district courts ⋯ . They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”).
28.
Stephen B. Burbank, Sean Farhang & Herbert M. Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 667 (2013).
29.
Stephen N. Subrin & Margaret Y. K. Woo, Litigating in America: Civil Procedure in Context 37 (2006).
30.
See, e.g., Carol Rice Andrews, Thinking About Civil Discovery in Alabama: Using the Federal Rules of Civil Procedure as a Thinking Tool, 60 Ala. L. Rev. 683, 685 (2009).
31.
See, e.g., About ATRA, Am. Tort Reform Ass’n, http://www.atra.org/about/ (last visited Apr. 24, 2014) (describing the costs of civil litigation and the economic impact to business).
32.
See, e.g., James A. Bamberger, Confirming the Constitutional Right of Meaningful Access to the Courts in Non-Criminal Cases in Washington State, 4 Seattle J. for Soc. Just. 383, 392–94 (2005) (discussing the fundamental right of individuals to have open access to courts).
33.
See About ATRA, supra note 31.
34.
See Stephen C. Yeazell, Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation, 60 UCLA L. Rev. 1752, 1754 (2013).
35.
Id. at 1757–59.
36.
Arthur R. Miller, Are the Federal Courthouse Doors Closing? What’s Happened to the Federal Rules of Civil Procedure?, 43 Tex. Tech L. Rev. 587, 598–99 (2011); see also How Our Civil Justice System Protects Consumers, PublicCitizen (Apr. 29, 2002), http://www.citizen.org/congress/article_redirect.cfm?ID=7545.
37.
Koh, supra note 26, at 1526.
38.
Id. at 1527 (“In sum, even by the Rules’ own standard, the interim report card seems decidedly mixed: Is today’s civil process just? Sometimes no. Is it speedy? Relatively. Inexpensive? Not really. Are there determinations of every action? Terminations, yes, but not necessarily ‘determinations.’”)
39.
Arthur R. Miller, Biography, New York University Law School, https://its.law.nyu.edu/facultyprofiles/profile.cfm?section=bio&personID=20130 (last visited June 11, 2014).
40.
I was present for both the keynote address and Professor Miller’s presentation and report these comments from my memory and notes. The presentation was not published.
41.
Paul V. Niemeyer, Is Now the Time for Simplified Rules of Civil Procedure?, 46 U. Mich. J.L. Reform 673, 673 (2013).
42.
Burbank, Farhang & Kritzer, supra note 28, at 650.
43.
Id. at 653.
44.
Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S., Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure 281 (2013).
45.
Paul C. Saunders et al., Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System 4 (2009).
46.
Arthur T. Vanderbilt, Foreword to Reports of the Section of Judicial Administration, 63 Annu. Rep. A.B.A. 500, 519 (1938).
47.
Paul D. Carrington, In Memoriam: Maurice Rosenberg, 95 Colum. L. Rev. 1897, 1901 (1995).
48.
Roscoe Pound, The Causes of the Popular Dissatisfaction with the Administration of Justice, 29 Annu. Rep. A.B.A. 395, 395 (1906).
49.
See John H. Wigmore, Roscoe Pound’s St. Paul Address of 1906: The Spark That Kindled the White Flame of Progress, 20 J. Am. Judicature Soc’y 176 (1937).
50.
See id. at 178. For a list of some of the criticisms as they continued through the years, see James R. Maxeiner et al., Failures of American Civil Justice in International Perspective 287–99 (2011).
51.
Pound, supra note 48, at 403. (“Private prosecution has become obsolete.”). Common law methods failed to keep government and public utilities in line. They did not protect employees or consumers; see 3 Roscoe Pound, Jurisprudence 343–44 (1959).
52.
Pound, supra note 48, at 405 (“The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point.”). The question should not be, “[w]hat do substantive law and justice require?,” but here it is, “[h]ave the rules of the game been carried out strictly?” Id. at 406.
53.
Id. at 407. American courts make public policy decisions as incidents of private litigation. Id. “[C]ourts are held for what should be the work of the legislature.” Id. at 408.
54.
Id. at 408, 415. Case law, Pound wrote, is inherently uncertain, confusing, incomplete, and bulky. The times called for the development of law through legislation; yet American legislation was crude and unorganized.
55.
Id. at 408. American courts decide cases on points of practice leading to “[u]ncertainty, delay and expense, and above all ⋯ injustice.” Id.
56.
Id. at 411–12. Rigid and yet overlapping jurisdictional lines (e.g., diversity) waste judicial resources and delay decisions of cases on their merits. “It ought to be impossible for a cause to fail because brought in the wrong place.” Id. at 412. “Even more archaic is our system of concurrent jurisdiction ⋯ involving diversity of citizenship.” Id. at 411.
57.
Id. at 415 (“Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench.”).
58.
See generally Austin W. Scott, Pound’s Influence on Civil Procedure, 78 Harv. L. Rev. 1568 (1965).
59.
Id. at 1573.
60.
Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L. Rev. 1015, 1054 (1982).
61.
Id. at 1097.
62.
Id. at 1078 (describing a debate in the Judiciary Committee where proponents of the Rules defined what powers the Supreme Court would have to make rules regarding practice and procedure).
63.
See Richard Marcus, “Looking Backward” to 1938, 162 U. Pa. L. Rev. 1691, 1694 (2014).
64.
28 U.S.C § 2072 (2012).
65.
Fred Rodell, For Charles E. Clark: A Brief and Belated but Fond Farewell, 65 Colum. L. Rev. 1323, 1323 (1965).
66.
See Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C. L. Rev. 691, 714 (1998) [hereinafter Subrin, Fishing Expeditions].
67.
Id. (identifying Sunderland as the drafter of the provisions on summary judgment and discovery).
68.
Edson R. Sunderland, Improving the Administration of Civil Justice, 167 Annals Am. Acad. Pol. & Socl Sci. 60, 60–70 (1933). Systematization of substantive law was the principal omission from Sunderland’s prescription.
69.
Id.at 73–80. The other two points—only tangentially included in the Federal Rules—were “obtaining jurisdiction over the defendant” and “obtaining a review.”
70.
Charles E. Clark, Edson Sunderland and the Federal Rules of Civil Procedure, 58 Mich. L. Rev. 6, 6 (1959).
71.
Fed. R. Civ. P. 1.
72.
Charles E. Clark, The Nebraska Rules of Civil Procedure, 21 Neb. L. Rev. 307, 308 (1942); see also Peter Julian, Charles E. Clark and Simple Pleading: Against a “Formalism of Generality,” 104 Nw. U. L. Rev. 1179, 1196 (2010).
73.
Edson R. Sunderland, The Problem of Trying Issues, 5 Tex. L. Rev. 18, 20 (1926) [hereinafter Sunderland, Trying Issues]; accord Edson R. Sunderland, The Machinery of Procedural Reform, 22 Mich. L. Rev. 293, 296 (1924) [hereinafter Sunderland, Machinery]; cf. Paul D. Carrington, Ceremony and Realism: Demise of Appellate Procedure, 66 A.B.A. J. 860, 860 (1980) (“[J]udges not only make law, they also decide cases—real cases ⋯ in conformity with law ⋯.”).
74.
Charles E. Clark, Handbook of the Law of Code Pleading 2 (2d ed. 1947) (“Before any dispute can be adjusted or decided it is necessary to ascertain the actual points at issue between the disputants.”); Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions 1 (1867) (“In the course of administering justice between litigating parties, there are two successive objects—to ascertain the subjects for decision, and to decide.”); Maxeiner, supra note 3, at 1265 n.26 (“The issues of fact and of law must be framed clearly enough so that the tribunal knows what to decide.”) (citing Fleming James, Jr. et al., Civil Procedure § 3.1, at 180 (5th ed. 2001)).
75.
See Julian, supra note 72, at 1184, 1186.
76.
Clark, supra note 74, at 16–17.
77.
Julian, supra note 72, at 1184, 1186.
78.
Id.
79.
Id. at 1184.
80.
See id. at 1186.
81.
Clark, supra note 72, at 312.
82.
Sunderland, Trying Issues, supra note 73, at 18.
83.
Maxeiner et al., supra note 50, at 90–91.
84.
Sunderland, Trying Issues, supra note 73, at 19.
85.
Edson R. Sunderland, The Provisions Relating to Trial Practice in the New Illinois Civil Practice Act, 1 U. Chi. L. Rev. 188, 200 (1933).
86.
Alexander Holtzoff, New Federal Procedure and the Courts 6–7 (1940); Sunderland, supra note 85, at 200 (stating that a trial should be “a well-organized presentation of the merits of the case instead of a contest in which each party attempts to overwhelm his opponent by unexpected attacks from ambush”).
87.
See Maxeiner et al., supra note 50, at 200–06.
88.
See, e.g., Holtzoff, supra note 86, at 6–7.
89.
Subrin, Fishing Expeditions, supra note 66, at 716–17.
90.
See Maxeiner, Pleading, supra note 3, at 1278–79.
91.
To avoid confusion with the Rules as amended, the Rules as adopted in 1938 are spoken of in the past tense, even though often the same language is found in the current rules. There are a number of editions of the Rules as adopted in 1938. Here, this article addresses the 1939 Federal Rules of Civil Procedure for the District Courts of the United States. Fed. R. Civ. P. (1939).
92.
Holtzoff, supra note 86, at 14–15 n.1 (quoting Laverett v. Cont’l Briar Pipe Co., 25 F. Supp. 80, 81 (E.D.N.Y. 1938)).
93.
Fed. R. Civ. P. 7; Julian, supra note 72, at 1184–86.
94.
Fed. R. Civ. P. 8(a)(2).
95.
Clark did not use the term “notice pleading” in the Federal Rules and did not regard Rule 8’s requirement as a mere notice, but as a “more legal requirement.” Charles E. Clark, Simplified Pleading, 27 Iowa L. Rev. 272, 278 (1942); accord Holtzoff, supra note 86, at 25 (“It suffices to plead conclusions, whether of fact or of law, provided the complaint is sufficiently definite so as to give fair notice to the opposite party of the precise nature of the claim.”).
96.
Holtzoff, supra note 86, at 2627 (setting out Rule 8(d) as adopted in 1938); see also Fed. R. Civ. P. 8(b)(6) (for the modern version of the Rule).
97.
But see Holtzoff, supra note 86, at 32 (“A statement that the defendant is without knowledge or information sufficient to form a belief as to the truth of certain allegations in the complaint has the effect of a denial. This is the case even if the facts are presumably within the pleader’s knowledge.”).
98.
See id. at 27; see also Fed. R. Civ. P. 8(d)(1).
99.
Holtzoff, supra note 86, at 27 (for the Rule as enacted in 1938); see also Fed. R. Civ. P. 8(d)(2) (for the modern version of the Rule).
100.
Holtzoff, supra note 86, at 25 (“In view of the fact that the pleader will be awarded that relief to which he is entitled, a pleading may not be dismissed on the ground that a party has misconceived his remedy and his prayer for judgment is not well founded, provided he is entitled to some relief on the facts averred.”). “Inconsistent claims may be joined in the same pleading ⋯ . The pleader is not required to elect as between such claims.” Id. at 26.
101.
Id. at 27.
102.
Fed. R. Civ. P. 9(a), (d), (e); see also Holtzoff, supra note 86, at 27–30.
103.
Fed. R. Civ. P. 9(b), (g); see also Holtzoff, supra note 86, at 29–30.
104.
Fed. R. Civ. P. 11(a), (b); see also Holtzoff, supra note 86, at 31.
105.
Fed. R. Civ. P. 11(a), (c); see also Holtzoff, supra note 86, at 32.
106.
See Fed. R. Civ. P. 13, 14.
107.
See Scott, supra note 58, at 1568–68.
108.
Fed. R. Civ. P. 12(b).
109.
Fed. R. Civ. P. 12(h).
110.
Fed. R. Civ. P. 12(c), (d).
111.
Fed. R. Civ. P. 12(e), (f).
112.
Id.
113.
Fed. R. Civ. P. 15.
114.
Fed. R. Civ. P. 15(b) (1938).
115.
Id.
116.
Harry D. Nims, The Cost of Justice: A New Approach, 39 A.B.A. J. 455, 458, 522–23 (1953); Fed. R. Civ. P. 16.
117.
Id.
118.
George Ragland, Jr., Discovery Before Trial 260 (1932).
119.
Fed. R. Civ. P. 56.
120.
Fed. R. Civ. P. 56(c).
121.
Fed. R. Civ. P. 51.
122.
Fed. R. Civ. P. 49.
123.
Fed. R. Civ. P. 48(c).
124.
Fed. R. Civ. P. 50.
125.
Fed. R. Civ. P. 52.
126.
Fed. R. Civ. P. 38.
127.
Current Rules of Practice & Procedure, United States Courts, http://www.uscourts.gov/rulesandpolicies/rules/current-rules.aspx (last visited June 21, 2014).
128.
Alfred P. Murrah, Pre-Trial Procedure, 328 Annals Am. Acad. Pol. & Soc. Sci. 70, 73 (1960).
129.
Id.
130.
Id.
131.
Jerome Frank, Courts on Trial: Myth and Reality in American Justice (1950).
132.
Judicial Conference of the United States, Committee Report on Procedure in Anti-Trust and Other Protracted Cases, 13 F.R.D. 62, 62–63 (1953) in Leon R. Yankwich, “Short Cuts” in Long Cases, 13 F.R.D. 41, 62–84 (1953); see also Dennis A. Kendig, Procedures for Management of Non-Routine Cases, 3 Hofstra L. Rev. 701, 701–02 (1975).
133.
Benjamin Kaplan & Livingston Hall, Foreword, 287 Annals Am. Acad. Pol. & Soc. Sci. vii, vii (1953).
134.
Conference on Court Congestion and Delay Executive Committee, J. Am. Judicature Soc. 91, 91 (1956).
135.
Warren E. Burger, The Courts on Trial: A Call for Action Against Delay, 44 A.B.A. J. 738, 738 (1958).
136.
Earl Warren, The Problem of Delay: A Task for Bench and Bar Alike, 44 A.B.A. J. 1043, 1043 (1958).
137.
Id.
138.
Henry P. Chandler, The Problem of Congestion and Delay in the Federal Courts, 328 Annals Am. Acad. Pol. & Soc. Sci. 144, 152 (1960).
139.
Milton D. Green, The Situation in 1959, 328 Annals Am. Acad. Pol. & Soc. Sci. 7, 8 (1960).
140.
See Glenn R. Winters, Foreward, 328 Annals Am. Acad. Pol. & Soc. Sci. vii, vii–viii (1960); Harry Kalven, Jr., The Literature of Judicial Administration: Books, 43 J. Am. Judicature Soc’y 210, 210–11.
141.
Kalven, supra note 140, at 210.
142.
See generally Roger A. Johnsen, Judicial Manpower Problems, 328 Annals Am. Acad. Pol. & Soc. Sci. 29 (1960) (exploring various ways to more effectively use the undermanned American judiciary).
143.
See Murrah, supra note 128, at 70.
144.
Charles E. Clark, Practice and Procedure, 328 Annals Am. Acad. Pol. & Soc. Sci. 61, 61 (1960) [hereinafter Clark, Practice and Procedure].
145.
Id.
146.
Id. at 66.
147.
In 1959, Hans Zeisel, Harry Kalven, Jr., and Bernard Buchholz published the first edition of their famous study. Hans Zeisel, Harry Kalven, Jr., & Bernard Buchholz, Delay in the Court: An Analysis of the Remedies for Delayed Justice (1959). In the Lagging Justice Symposium, they presented the study’s results as calling for the most modest of change. Harry Kalven, Jr., The Bar, the Court, and the Delay, 328 Annals Am. Acad. Pol. & Soc. Sci. 37, 44–45 (1960); Hans Zeisel, The Jury and the Court Delay, 328 Annals Am. Acad. Pol. & Soc. Sci. 46, 52 (1960). Yet years later, Professor Carrington termed their study “a monstrous empirical assault on the institution of the civil jury.” Carrington, In Memoriam, supra note 47, at 1902.
148.
Clark, Practice and Procedure, supra note 144, at 62.
149.
Id. at 65.
150.
Id.
151.
Maurice Rosenberg, Devising Procedures That Are Civil to Promote Justice That Is Civilized, 69 Mich. L. Rev. 797, 798 (1971).
152.
Warren E. Burger, Preface to The Pound Conference: Perspectives on Justice in the Future 5, 6 (A. Leo Levin & Russell R. Wheeler, eds., 1979).
153.
Id.
154.
See id.
155.
Paul D. Carrington, Virtual Civil Litigation: A Visit to John Bunyan’s Celestial City 98 Colum. L. Rev. 1516, 1518–19 (1998).
156.
Id. at 1519.
157.
Id.
158.
Id.
159.
The quote is from Lord Brougham’s famous description of adversary representation. Monroe H. Freedman, Henry Lord Brougham and Zeal, 34 Hofstra L. Rev. 1319, 1323 (2006).
160.
Subrin, Fishing Expeditions, supra note 66, at 741.
161.
Id.
162.
George B. Shepherd & Morgan Cloud, Time and Money: Discovery Leads to Hourly Billing, 1999 U. Ill. L. Rev. 91, 94–95 (1999) (using an economic model to support the premise that liberal discovery rules under the Federal Rules were a “substantial factor” in encouraging the legal profession to move to hourly billing).
163.
See Subrin, Fishing Expeditions, supra note 66, at 706–07.
164.
Roscoe Pound, A Practical Program of Procedural Reform, 22 Green Bag 438, 439 (1910) (“It is not too much, indeed, to say that improvement in these three particulars [court organization, bench, and bar] is a necessary precursor of thoroughgoing reform of procedure.”).
165.
Compare William D. Mitchell, The New Federal Rules of Civil Procedure, 61 Ann. Rep. A.B.A. 423, 430 (1936) (“[A] suit is not a mere game of checkers ⋯ .”), with William S. Bailey, Successful Pretrial Motions in 10 Moves, Trial, Mar. 2009, at 22 (examining pretrial motions as chess moves).
166.
See, e.g., Frederick L. Whitmer, Litigation Is War: Strategy & Tactics for the Litigation Battlefield 1 (2007); Simon H. Rifkind, Are We Asking Too Much of Our Courts, 70 F.R.D. 79, 107 (1976) (“The practice-in many areas of the law-has been to make discovery the ‘sporting match’ and an endurance contest.”).
167.
Scott Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors? 75–78 (2013); Stephen Subrin & Thomas Main, The Fourth Era of American Civil Procedure, 162 U. Pa. L. Rev. 1839 (2014).
168.
Arthur. R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 86 N.Y.U. L. Rev. 286, 288–90 (2013) [hereinafter Miller, Simplified Pleading]; Julian, supra note 72, at 1184–85.
169.
Julian, supra note 72, at 1186–87; Clark, Practice and Procedure, supra note 144, at 61.
170.
See discussion infra Sect. 5.4.1.
171.
Dodson, supra note 167, at 30–46.
172.
See id. at 77.
173.
Id. at 75–81; Miller, Federal Courthouse Doors, supra note 36, at 59194, 597; Craig B. Shaffer & Ryan T. Shaffer, Looking Past the Debate: Proposed Revisions to the Federal Rules of Civil Procedure, 7 Fed. Cts. L. Rev. 178, 17879, 197 (2013).
174.
Dodson, supra note 167, at 77.
175.
Miller, Federal Courthouse Doors, supra note 36, at 59194, 597
176.
See id. at 598.
177.
Arthur R. Miller, The Adversary System: Dinosaur or Phoenix, 69 Minn. L. Rev. 1, 20 (1984).
178.
Carrington, In Memoriam, supra note 47, at 1901 (“Its father could be said to be Jeremy Bentham. Its seldom-sung American heroes include David Dudley Field, Roscoe Pound, Harry Wigmore, Charles Clark, and Maurice Rosenberg.”).
179.
D. Michael Risinger, Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper), 60 UCLA L. Rev. 1620, 1631 (2013).
180.
Id. at 1622–23. See generally James Gordley, The Meaning of Equal Access to Legal Services, 10 Cornell Int’l L.J. 220 (1977).
181.
Dodson, supra note 167; Miller, Federal Courthouse Doors, supra note 36, at 587; Weinstein, supra note 6, at 1907 (speaking of an “anti-access movement”).
182.
Carrington, In Memoriam, supra note 47, at 1901.
183.
See Advisory Comm. on Civil Rules, April 1011, 2014 Meeting 7 (2014), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf (listing Richard L. Marcus and Edward H. Cooper as current reporters); Federal Committee on Rules of Practice and Procedure Opens “Duke Rules Package” for Comment, Duke Law School, (Aug. 22, 2013), http://law.duke.edu/news/federal-committee-rules-practice-and-procedure-opens-duke-rules-package-comment/ (describing Arthur R. Miller and Paul D. Carrington as former reporters).
184.
The fourth, Edward H. Cooper, so far as I know, does not disagree with the synoptic epic Miller, Marcus, and Carrington; but he has not told his views in publications known to the author.
185.
Miller, Simplified Pleading, supra note 168, at 288–89.
186.
Id. at 288; Paul D. Carrington, A New Confederacy? Disunionsim in the Federal Courts, 45 Duke L.J. 929, 932 (1996) (“[N]ineteenth century civil procedure was a sport of chance in which the substantive merits of claims and defenses played a minor role.”)_.
187.
Lately Professor Marcus has doubted whether it was quite so new. See Richard Marcus, Bomb Throwing, Democratic Theory, and Basic Values—A New Path to Procedural Harmonization?, 107 Nw. U. L. Rev. 475, 481 (2013).
188.
Marcus, Modes, supra note 18, at 157; accord Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience, 60 Duke L.J. 597, 604 (2010) [hereinafter Carrington, Politics] (noting the “eminent lawyers” who were not quite giants).
189.
Miller, Simplified Pleading, supra note 168, at 288; accord Carrington, supra note 188, at 604.
190.
Miller, Simplified Pleading, supra note 168, at 290.
191.
Id. at 360–61.
192.
Conley v. Gibson, 355 U.S. 41, 47–48 (1957).
193.
Hickman v. Taylor, 329 U.S. 495, 501 (1947).
194.
Miller, Simplified Pleading, supra note 168, at 292.
195.
Carrington, Politics, supra note 188, at 601–02.
196.
Paul D. Carrington, Moths to the Light: The Dubious Attractions of American Law, 46 U. Kan. L. Rev 673, 684 (1998) [hereinafter Carrington, Moths to the Light]; Carrington, Politics, supra note 188, at 605 (“To the extent that the Progressive reformers achieved their aims, private citizens gained the ability to enforce many diverse laws enacted or proclaimed to protect public interests as well as their own.”).
197.
Marcus, American Exceptionalism , supra note 20, at 139.
198.
Carrington, Politics, supra note 188, at 610.
199.
Advisory Committee on Civil Rules, Preliminary Draft of the Proposed Amendments to the Discovery Rules app. B (1969), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CV07-1969.pdf.
200.
Paul D. Carrington, The American Tradition of Private Law Enforcement, 5 German L.J. 1413, 1419 (2004) [hereinafter Carrington, American].
201.
Miller, Simplified Pleading, supra note 168, at 302.
202.
See id. at 302–06, 309.
203.
Marcus, American Exceptionalism , supra note 20, at 139.
204.
Miller, Simplified Pleading, supra note 168, at 287.
205.
Carrington, Politics, supra note 188, at 609.
206.
Miller, Simplified Pleading, supra note 168, at 372.
207.
Carrington, supra note 155, at 1522–23.
208.
See id. at 1517.
209.
Uzelac, supra note 1, at 3 (“It would be easy to state the obvious and repeat that in all justice systems of the world the role of civil justice is to apply the applicable substantive law to the established facts in an impartial manner, and pronounce fair and accurate judgments.”). This collection includes twelve papers on the goals of civil justice in an approximately like number of countries. The paper from the United States is by Professor Marcus.
210.
Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting).
211.
Edson R. Sunderland, Current Legal Literature: Among Recent Books, 15 A.B.A. J. 35, 36 (1929).
212.
It was the only foreign system that Pound named in his 1906 address: “the wonderful mechanism of modern German judicial administration.” Pound, supra note 48, at 397. It may be better today. One-hundred six years later, the World Justice Project, partly funded and led by the American Bar Association, reviewed ninety-seven civil justice systems around the world. Of the civil justice systems in the twenty-nine wealthiest countries, the Project rated the German system third, behind only those of the Netherlands and Norway. The project scored the U.S. nearly twenty percent lower and ranked it nineteenth among the richest nations. Mark David Agrast et al., The World Justice Project: Rule of Law Index 2012–2013 2629 (2013).
213.
For an explanation of this system, see Maxeiner et al., supra note 50, along with three other books and dozens of articles authored by Maxeiner.
214.
Maxeiner, supra note 3, at 1283.
215.
Id. at 1280–88.
216.
Id. at 1285.
217.
Id. at 1285–86.
218.
Id.
219.
Id.
220.
Maxeiner, supra note 3, at 1286.
221.
Id.
222.
Id.
223.
Id. at 1287.
224.
Id.
225.
Id.
226.
James R. Maxeiner, Imagining Judges That Apply Law: How They Might Do It, 114 Penn St. L. Rev. 469, 481 (2009).
227.
See id.
228.
Id. at 478.
229.
Id. at 476–81.
230.
James R. Maxeiner, What America Can Learn from Germany’s Justice System, Atlantic (June 7, 2012, 11:00 AM), http://www.theatlantic.com/national/archive/2012/06/what-america-can-learn-from-germanys-justice-system/258208/.
231.
Maxeiner, supra note 3, at 1282.
232.
See James R. Maxeiner, Thinking Like A Lawyer Abroad: Putting Justice Into Legal Reasoning, 11 Wash U. Glob. Stud. L Rev. 55, 85 (2012).
233.
Sunderland, supra note 211, at 35.
234.
Carrington, Moths to the Light, supra note 196, at 686 (“It would require deep cultural change ⋯ .”); see Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay on Adjusting the “One Size Fits All” Assumption, 87 Denv. U. L. Rev. 377, 397 (2010) (noting that some changes would be “too deep an assault on the historic role of civil litigation in our country”). See generally Oscar G. Chase, American “Exceptionalism” and Comparative Procedure, 50 Am J. Comp. L. 277 (2002) (examining the relationships between a society’s culture and dispute resolution methods); Richard L. Marcus, Putting American Procedural Exceptionalism into a Globalized Context, 53 Am J. Comp. L. 709 (2005) (introducing works that examine the dispute resolution methods in other countries).
235.
See infra note 269.
236.
Caleb Cushing, On the Study of the Civil Law, 11 N. Am. Rev. 407, 408 (1820).
237.
See generally Marcus, American Exceptionalism, supra note 20 (examining the unique goals of American civil litigation).
238.
Marcus, American Exceptionalism, supra note 20, at 139 (“American procedure is exceptional because American procedural goals are exceptional⋯ . The goal of public enforcement largely emerged after World War II, and there has recently been an effort in the U.S. to discredit the goal of private enforcement that seems now to explain so much about American procedure that baffles the rest of the world. Not surprisingly, those who challenge the private enforcement goal in the U.S. also seem to want to dismantle the procedural apparatus that supports it.”).
239.
See Subrin & Woo, supra note 29, at 37(“The role of civil litigation in America is somewhat different perhaps from its role in other countries, and it defines the character of our legal system. Rather than simply seeking courts to resolve private disputes (the conflict resolution model), Americans have relied on relatively open access to court and private civil litigation to be at the heart of a great deal of the enforcement of our public laws (the behavior modification or social control model). With a mistrust of big government and intrusive states, the American public has (probably more than most other countries) relied on private civil litigation rather than solely on state-controlled litigation or state regulatory agencies to enforce our public values.”).
240.
Paul D. Carrington, Renovating Discovery, 49 Ala. L. Rev. 51, 54 (1997); accord Carrington, American, supra note 200, at 1413; Paul D. Carrington, Civil Procedure to Enforce Transnational Rights?, (Mar. 3, 2007), available at http://scholarship.law.duke.edu/faculty_scholarship/1990; see also J. Maria Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L. Rev. 1137 (2012); Marcus, supra note 234.
241.
Were these statements true, foreign experiences ought none the less lead Americans to ask: (1) should the United States abandon the “transsubstantive model,” one size fits all, of forms of civil procedure and substitute a two-track approach, where one track is for dispute resolution and the other for social policy?; and (2) is the United States well served by private enforcement through civil justice or are there better ways to achieve policy goals?
242.
See Uzelac, supra note 1.
243.
Id. at 6.
244.
Id.
245.
Although the U.S. system is not exceptional in goals, it is exceptional in its methods: it hands over the power of the state to unchecked use by private parties. E. Donald Elliott, Twombly in Context: Why Federal Rule of Civil Procedure 4(b) is Unconstitutional, 64 Fla. L. Rev. 895, 898 (2012).
246.
Marcus, American Exceptionalism , supra note 20, at 129 (emphasis added).
247.
Id. at 129–34.
248.
Perhaps they read too robustly the words of Mirjan Damaska. Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).
249.
Uzelac, supra note 1, at 15–16.
250.
See Maxeiner et al., supra note 50, app. at 271.
251.
E-mail from Ralf Peters, Fed. Ministry of Labour and Soc. Affairs, to James R. Maxeiner (Feb. 12, 2014).
252.
Aufbau und Organisation, Bundesministerium der Justiz und für Verbraucherschutz, http://www.bmjv.de/DE/Ministerium/AufbauOrganisation/_node.html (last visited June 26, 2014).
253.
Office of Personnel Mgmt., Data, Analysis & Documentation Federal Employment Reports: Employment and Trends—September 2012 (2012), https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/employment-trends-data/2012/September/table-3/.
254.
Different writers highlight different areas for mention. Employment law and consumer protection are two areas that have not only been mentioned but have received close attention. See Burbank, Farhang & Kritzer, supra note 28, at 667. This article was prepared as part of the fourteenth World Congress of the International Association of Procedural Law. Id. at 637 n.a1. It focuses on two areas of private enforcement: employment law and protecting consumers from unfair and deceptive acts and practices. Id. at 643.
255.
David S. Schwartz, Mandatory Arbitration and Fairness, 84 Notre Dame L. Rev. 1247, 1323 n.233 (2009).
256.
Until recently, Germany did not have a specific discrimination law. Joachim Wiemann, Obligation to Contract and the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz), 11 German L.J. 1131 (2010). Nevertheless German labor courts have long handled matters that in America would be raised as job discrimination. Since the U.S. has no general employment law, but instead applies a common law “employment at will” doctrine, plaintiffs who would bring unlawful discharge suits in Germany assert discrimination in employment. See Miller, Simplified Pleading, supra note 168, at 343 n.210.
257.
See Manfred Weiss & Marlene Schmidt, Labour Law and Industrial Relations in Germany 149 (4th ed. 2008). For perspectives specifically on German labor courts and proceedings, see Jürg Arnold, Die Arbeitsgerichtsbarkeit: Festschrift zum 100-jährigen Bestehen des Deutschen Arbeitsgerichtsverbandes (1994); Eberhard Wieser, Arbeitsgerichtsverfahren (1994); and still valuable and insightful, Ernst Fraenkel, The Labor Courts in the German Judicial System, in German Labor Courts 3–18 (1946).
258.
Barbara Grunewald & Karl-Nikolau Peifer, Verbraucherschutz im Zivilrecht 7–10 (2010) (with an introduction and ten chapters each on a different form of consumer protection detailing its implementation); Stefan Lenze, German Product Liability Law: Between European Directives, American Restatements and Common Sense, in Product Liability in Comparative Perspective 100–25 (Duncan Fairgrieve, ed. 2005).
259.
James R. Maxeiner & Peter Schotthöfer, Advertising Law in Europe and North America 228–32 (2d ed. 1999) (including a chapter on German law by George Jennes & Peter Schotthöfer); James R. Maxeiner, Standard-Terms Contracting in the Global Electronic Age: European Alternatives, 28 Yale J. Int’l L. 109, 157–59 (2003).
260.
See generally Law Against Unfair Competition: Towards a New Paradigm in Europe? (Reto M. Hilty & Frauke Henning-Bodewig eds., 2007) (examining the evolution of competition laws in Europe); The Enforcement of Competition Law in Europe (Thomas M. J. Möllers & Andreas Heinemann eds., 2007) (analyzing the enforcement mechanisms of unfair competition law and antitrust law).
261.
David Alexander Jüntgen, Die prozessuale Durchsetzung privater Ansprüche im Kartellrecht passim (2007); James Maxeiner, Policy and Methods in German and American Antitrust Law: A Comparative Study 55 (1986).
262.
See Bénédicte Fauvarque-Cosson & Denis Mazeaud, European Contract Law: Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules 489 n.175 (2008).
263.
Professor Burbank and colleagues set out those difficulties in their recent article on private enforcement. Burbank, Farhang & Kritzer, supra note 28, at 667.
264.
Mahendra P. Singh, German Administrative Law in Common Law Perspective 219–22 (2nd ed. 2001).
265.
Sunderland, supra note 211, at 35. See also Colin Picker, Comparative Law Methodology & American Legal Culture: Obstacles and Opportunities, 16 Roger Williams U. L. Rev. 86 (2011).
266.
Ernst C. Stiefel & James R. Maxeiner, Why are U.S. Lawyers not Learning from Comparative Law?, in The International Practice of Law 213–36 (Nedim Peter Vogt et al. eds., 1997), available at http://ssrn.com/abstract=1250002.
267.
This offers a niche for U.S. law professors who do not know foreign languages. Since these foreign scholars do not know U.S. law, their work needs “translation” into American legal understanding.
268.
This would address Professor Clermont’s claim that we cannot use foreign experiences because knowledge of foreign systems is too little diffused. See Kevin M. Clermont, Three Myths About Twombly-Iqbal, 45 Wake Forest L. Rev. 1337, 1343 n. 36 (2010).
269.
See, e.g., Edson R. Sunderland, Joinder of Actions, 18 Mich. L. Rev. 571, 572 (1920) (“There is further striking failure which must be charged to the legal profession in America ⋯ and that is its ignorance of and indifference to improvements in procedural practice developed in other jurisdictions. It is safe to say that if a new method of treating cancer were discovered and successfully employed in England, every intelligent doctor in the world would almost immediately know about it and attempt to take advantage of it. But it is equally safe to say that if a new and successful method of treating some procedural problem were discovered in England, American lawyers as a class would remain in substantial ignorance of it for at least two generations, and would probably treat it with scornful indifference for a generation or two more. There are no state lines for progressive doctors, dentists, engineers, architects, manufacturers or business men. But not one lawyer in a hundred knows or cares what reforms are being employed by his profession on the other side of the political boundary. The American lawyer is satisfied with things as they are. As long as clients continue to come and the machinery of the law continues to move, he is ⋯ free from concern over the methods used elsewhere ⋯ .”).
270.
Rudolf von Jhering, Geist Des Römischen Rechts Auf Den Verschiedenen Stufen Seiner Entwicklung 8–9 (Basel: B. Schwabe, 1953).
271.
Sunderland, supra note 211, at 35.
272.
Warren E. Burger, Agenda for 2000 A.D.—A Need for Systematic Anticipation, 70 F.R.D. 79, 89 (1976).

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Guy Seidman

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Maxeiner, J.R. (2016). The United States Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to Law?. In: Picker, C., Seidman, G. (eds) The Dynamism of Civil Procedure - Global Trends and Developments. Ius Gentium: Comparative Perspectives on Law and Justice, vol 48. Springer, Cham. https://doi.org/10.1007/978-3-319-21981-3_5

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