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Judging Rules, Ruling Judges

Authors: Yeazell, Stephen C.;

Judging Rules, Ruling Judges

Abstract

The Federal Rules of Civil Procedure currently govern all federal and, indirectly, most of state litigation in the United States. There are deep flaws in the process by which those Rules are framed and amended. Since the original Rules were proposed and adopted in the 1930s, Congress and the courts have changed the process for amending the Rules and the composition of the groups responsible for those amendments. Once a flat, two-step process in which lawyers and academics proposed rules for approval by judges, the system now has twelve layers and is dominated by judges. Three unfortunate consequences flow from these changes. First, increased judicial responsibility for rulemaking involves the federal judiciary in unnecessary clashes with Congress. Second, the proliferation of steps makes the amending process unwieldy and unnecessarily slow. Third, changes from a trial-dominated to a settlement-dominated litigation system make judges less skilled in assessing the effect of proposed changes. This essay summarizes the steps that took us to the present system, explaining the ill consequences of successive well-intentioned and apparently minor changes. It then proposes an alternative. The essay argues for eliminating most of the present layers of process, and for returning to a model in which lawyers take the lead in proposing changes, with judges approving or disapproving the final product.

Related Organizations
Keywords

330, Powers and duties, Civil procedure, Rules, Policy making, Judges & magistrates, Federal courts, Judiciary, Law

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citations
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
2
Average
Average
Average
gold