Four decades ago, the “rights revolution” increased government protection for disadvantaged individuals and groups, leading in the process to a dramatic expansion of judicial authority.Footnote 1 Courts gained new powers to interpret statutes, implement public policy, and manage government institutions. Federal judges created and expanded a host of constitutional rights, ranging from rights against discrimination in public places, the workplace, and the voting booth, to freedom of speech and religion, and a right to privacy. Congress further authorized courts to help enforce, manage, and interpret policy areas as diverse as environmental protection, welfare administration, prison reform, medical care, and education and housing policy.Footnote 2 Congress empowered judicial administrative bodies by revamping the processes for creating and amending rules of practice and procedure in order to manage the floods of litigants knocking at the courthouse door. As demand for judicial redress skyrocketed, so too did supply; the number of judges and lawyers expanded exponentially as all three branches of government clamored to deepen funding and incentives for legal services.Footnote 3 The result—a vastly broadened and empowered judicial branch—has led many scholars to argue that the judiciary is now a centerpiece of the modern American state.Footnote 4
But today, the rights revolution legacy is under attack, as are the power of the judiciary and especially litigant access to the courts.Footnote 5 While constricting access to the judiciary has been a primary goal of the Republican revolution since their political reemergence in the late 1960s, efforts to streamline the adjudicative process date back much further as reformers, including a bipartisan set of politicians, activists, and judges, have worked to close courtroom doors to certain types of disputes. In recent years, Congress has passed numerous court-stripping statutes that limit judicial jurisdiction over specific areas of the law, including the Antiterrorism and Effective Death Penalty Act (1996), the Illegal Immigration Reform and Immigrant Responsibility Act (1996), and the Detainee Treatment Act (2005). Legislation such as the Private Securities Litigation Reform Act (1995) and the Class Action Fairness Act (2005) were recently passed in order to cut down the overall amount of litigation by narrowing opportunities for potential plaintiffs to reach the courtroom. Judges have also been active in retrenching certain areas of court activism, reflecting both a new cohort of conservative federal court judges installed by the Republican Party and a bipartisan recognition of a crisis in court capacity. The Supreme Court has made a series of rulings that limit its own institutional reach, particularly by constricting standing, providing greater deference to administrative adjudication and rulemaking, and narrowing or even reversing many of the rights revolution decisions of the Warren Court era.Footnote 6 As a result of the alternative dispute resolution (ADR) movementFootnote 7 and the development of administrative law, certain types of claims traditionally heard by courts have been moved outside of traditional legal institutions. Additionally, courts, Congress, and judicial administrators have changed an array of procedural and institutional rules in response to the perceived explosion of litigation cases and expenses. Over time, these activities have changed the power dynamics of the judicial branch, as well as access to its institutions and remedies.
What explains the politics of institutional retrenchment in the judiciary? More broadly, when and why is institutional retrenchment likely to occur? This article addresses these questions through an examination of the history of the Federal Rules of Civil Procedure. Although many constitutional scholars have noted the conservative shift in jurisprudence since the beginning of the Rehnquist era, and others have examined the development of the support structures that served as the underpinnings for the conservative revolution,Footnote 8 and yet others the increase in judicial activism on the part of conservative justices and judges, scholars have been slow to study the retrenchment of judicial institutions. In part, this is because public law scholars interested in historical development and change—scholarship that intersects with the field of American Political Development (APD)—have tended to be narrow in their engagement with the courts as multifaceted institutions.Footnote 9 Law and APD scholars have fruitfully developed and employed a “regime politics” approach to understanding law and courts, emphasizing the ways in which courts are enabled and empowered by dominant political coalitions driven by their own strategic imperatives;Footnote 10 this approach, however, by nature focuses specifically on the political foundations of the Supreme Court and its use of judicial review. Because the formal constitutional powers granted to the judiciary are both few and unclear, and because the Supreme Court has nonetheless leveraged vast power over time, dramatically influencing political outcomes, law and APD scholars argue that the exercise of such power must be—and often is—enabled by lawmakers wishing to enhance their own power. But as a smaller group of scholars that study judicial development and reform have increasingly demonstrated, Footnote 11 I argue that the regime politics approach does not account for or fully explain the range of institutional change (and stasis) observed in the judiciary over time. Because the regime politics approach focuses primarily on decisions of the Supreme Court and their interaction with the political branches, law and APD scholars have tended to overlook the broad range of rules, procedures, incentives, and actors that constitute the judiciary as an institution. While their conclusions are undoubtedly true (political parties certainly seek at times to entrench and enable their ideological and policy interests through judicial appointments, for example), the explanatory power of this scholarship is ultimately limited by overlooking the institutional features and dynamics internal to the judicial branch that are often the sites of institutional change.
At the same time, the field of American political development more generally has itself only slowly come to view “retrenchment” as a historical reality and distinctive political process, with features and dynamics that overlap with, but are also distinguishable from, the processes of political “development.” The APD canon has traditionally accounted for development and change, but the direction of this development—while not linear—tends toward “more” state and more institutional development and entrenchment, not less. This is partially a product of the types of questions asked by APD scholars and the preferred historical periods for their work, which primarily include the creation of the social welfare state in the early twentieth century, culminating in the New Deal.Footnote 12 As such, scholars emphasize path dependence,Footnote 13 argue that state institutions “thicken,”Footnote 14 political actors are “entrenched,”Footnote 15 and policies and agencies take on lives independent from their initial purpose, often leading to a “disjointed” polity where the layering of new institutions over old leads to conflicts that stunt reform movements.Footnote 16 These insights are indispensable to the study of state development over time, but they also obscure the ways in which politics can promote genuine reversals (of institutional authority and policy) and leave imprecise a conception of the political and institutional processes that constitute retrenchment and the variables that affect both its success and failure.Footnote 17 Even when institutions historically been confronted and dismantled, these specific, instances of retrenchment are theoretically subsumed within a broader narrative of state development.Footnote 18 By extension, APD scholars also view the potential for changes in judicial authority in the same way that they view change in other institutions. Once legal reforms are enacted, they create interests and institutions that become entrenched, creating a new body of rules and precedents around and from which parties mobilize and benefit.
In recent years, however, institutional change scholars in dialogue with APD scholars have expanded the conceptual framework of retrenchment in order to build a better understanding of it as a distinctive form of institutional change. They have done so largely by identifying the distinctive politics of retrenchment, the forms that these efforts take, and by stressing that opportunities for retrenchment are highly path dependent.Footnote 19 To date, these efforts have largely focused on erosion in welfare policy, with little attention to courts and judicial institutional retrenchment.Footnote 20 Much of this research is helpful for understanding judicial retrenchment. In particular, I employ Jacob Hacker's typology of “everyday” forms of retrenchment—drift, conversion, layering, and revision—as a tool for both locating and explaining institutional retrenchment within the judicial branch.Footnote 21 But shifting the focus from a policy area to a branch of government also complicates the process in important ways. Indeed, what is meant by the term “judicial retrenchment” is not entirely self-evident, and shifting this conceptual apparatus from the realm of policy to the institutional judiciary is far from a seamless process;Footnote 22 accordingly, I utilize the crucial contributions of this retrenchment literature in building a conception and analysis of the politics and processes of judicial retrenchment.
Specifically, by “judicial retrenchment” I mean efforts to 1) constrict access to the courts, 2) restructure the division of power between the courts and other institutional actors, and/or 3) consolidate judicial autonomy and power.Footnote 23 As an attempt to better characterize and explain the politics of judicial retrenchment, I focus primarily on how specific actors utilize the institutional and political tools at their disposal either to pursue retrenchment or to defend judicial institutions from it. In examining the success of retrenchment efforts, this analysis explores whether, how, and why reformers were successful in actually enacting the reforms that they desired.Footnote 24
As this definition indicates, I include a wide range of efforts toward institutional change under the umbrella term “retrenchment.” Therefore, while the traditional political science usage of retrenchment (taking away concentrated benefits for diffuse societal goals) in this case most closely approximates efforts to constrict access to the courts, some of my findings indicate not, in fact, a net decrease in government power overall, but rather a shift in authority from the judiciary to other actors. However, because retrenchment is by nature a difficult political project, yielding few unequivocally clear examples of success, I cast a wide definitional net in order to give my analysis as much explanatory power as possible.Footnote 25
To complicate things further, actors seeking to reduce the impact of the judiciary on political outcomes have two distinct targets at their disposal: 1) judicial authority/power and 2) access to the courts for the assertion of rights. While these targets are conceptually distinct, the relationship between them is complex. It is rare, in fact, that any one change will decrease both judicial power and access; it is far more often the case that increasing the scope of judicial authority will reduce access to the courts, if a court chooses to use their authority to limit access (e.g., the Rehnquist Court), or that reducing the scope of judicial authority will increase access, such as by the legislative imposition of more procedural rules, statutory causes of action, or incentives (e.g., provisions for attorneys' fees). Because of this, an analysis that focuses on only one retrenchment target is not likely to effectively capture the complicated political project that is retrenchment. This assessment has been made by various legal scholars who study antilitigation effortsFootnote 26 and political scientists concerned with judicial activism.Footnote 27 The fact that a plethora of legal scholars note the fiercely antilitigation sentiment of the Rehnquist Court while, at the same time, others note that the Court was The Most Activist Supreme Court in History captures what is often the inverse relationship between broad judicial power and access to courts.Footnote 28 Additionally, as national administrative capacities have grown over the course of the century, retrenchers also often seek to decrease both judicial authority and access to courts by shifting the adjudication of traditional legal questions from the judiciary to the quasi-judicial apparatus of administrative agencies. I attempt here to distinguish and balance these concepts in hopes of providing a more complete picture of judicial retrenchment efforts.
Explaining judicial institutional change, and particularly efforts at judicial retrenchment, therefore requires a richer conception of the judiciary as an institution and a greater recognition of the distinctive politics and processes of retrenchment. Whatever else the U.S. judiciary may be, it is a complex body of rules, procedures, incentives, and actors. As it evolves over time, little is more fundamental to its politics than recurrent efforts to change its institutions.Footnote 29 Actors motivated to change and protect judicial institutions are multiple, and exist both inside and outside of the judiciary. Their relationships to the judiciary are multifaceted, and their interests often transcend traditional partisan and ideological lines. Perhaps most importantly, judicial institutional change exists in a broad temporal context. As barriers to authoritative change rise and fall, and as support for judicial authority ebbs and flows, the processes of institutional retrenchment and the groups driving them fluctuate as well.
Any theory of judicial institutional change, and of judicial retrenchment specifically, must then take seriously the intersecting contributions of the law and society, institutional change, and APD literatures and impose them upon the study of legal institutional change.Footnote 30 Specifically, this requires conceiving of the judicial branch as consisting not only of Supreme Court justices and constitutional law, but also of lawyers, legislators, administrators, and other interest groups.Footnote 31 It involves recognizing the potential and reality of retrenchment as a process that is both distinctive and path dependent. Finally, it necessitates a realization that a focus on “political context” does not in and of itself include an adequate consideration of the role of institutions.Footnote 32 I argue that, by focusing on these factors, we can produce a broader understanding of the politics of judicial retrenchment specifically and the processes of retrenchment in general. Unlike other approaches, this type of analysis seeks to capture the full range of retrenchment efforts, as well as to account for what contributes to their success and failure.
This article focuses on a specific case of judicial retrenchment: efforts to reform the rules that govern the litigation process. Although these rules, known collectively as the Federal Rules of Civil Procedure, have been largely overlooked by political scientists,Footnote 33 they are critical not only to courtroom outcomes, but also to the capacity of judges to engage in political matters.Footnote 34 In making it easier for potential litigants to go to the courts for recourse, these rules were also fundamental to the expansion and entrenchment of judicial authority and access to courts during the New Deal and rights revolution.Footnote 35 As might be expected, therefore, would-be retrenchers have made reform of the rules a priority for decreasing judicial power and redress to courts, and multiple institutions have wrestled to obtain more authority over the rulemaking process. But the campaign to retrench rules illuminates the complexity of the retrenchment process; it has gone through multiple stages involving very different interests, at different times involving judicial administrators, legislators, judges, lawyers, and an assortment of interest groups. It began in the 1970s as a Democratic Party-led effort for legislators and litigators to gain control of the rulemaking process. In the 1980s these actors continued to push, but were joined by legal reformers internal to the rulemaking process who wanted—for largely nonideological reasons—to find ways to address what they deemed a litigation crisis that was overwhelming court capacity. Only after 1994 has rule reform been dominated by Republican legislators and business lobbyists interested in retrenching tort and public interest litigation, primarily through class action reform.
My analysis demonstrates that actors pursuing retrenchment come from both within and outside the judiciary, evidencing a robust set of actors (far beyond judges) who are integral to the process. I find that the groups and political cleavages involved in judicial retrenchment change over time and are motivated by more than mere partisan backlash;Footnote 36 that the processes of retrenchment are distinctive but not static, unfolding in a series of methods for attempted institutional change according to factors such as the presence of veto players, levels of discretion, insularity, and overreach;Footnote 37 and—most importantly—that the availability of institutional “rules” that are less subject to partisan battle enhance the likelihood of effective change. Finally (and often ironically), I find that the process of development itself sows the seeds for subsequent retrenchment, making retrenchment both path dependent and path breaking.
Retrenching the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern the process of courtroom litigation. When an individual has suffered an injury as defined by substantive law, these rules then determine, procedurally, whether or not one has a legal claim. They also dictate the form that adjudication takes, who the relevant parties are to the claim, what information and evidence is applicable and available to the parties, as well as what opportunities exist for appeals, delays, and motions to end or move the claim from its initial courtroom. As with rules that govern any institution, such as the legislative process or the electoral arena, the rules that govern courtroom procedure have great consequence for substantive outcomes. Rules that provide for mass litigation, such as the class action, make matters of civil procedure consequential not just for individual plaintiffs and defendants, but often for national public policy as well. Changes to rules can determine increases or decreases in litigation rates, as well as influence the role that litigation plays in enforcing public policy. Moreover, like any institution, the rules create a set of incentives for political behavior. As we will see, numerous actors, variously impacted by the rules, are keenly aware of the relevance of rulemaking and make concerted efforts to influence the process and outcomes of rule reform.Footnote 38
The Entrenchment of Federal Rules, 1934–1973
The modern version of the federal rules was initially developed during the New Deal era. The impetus for civil rules reform emerged in response to the “hyper-technicality” and lack of uniformity that had developed around the existing rule structure and materialized into a procedural reform movement in the states.Footnote 39 Scholars have attributed rule reform to various sources, including organizations of lawyers (such as the American Bar Association) and law professors who wanted to increase litigation in American society, conservatives who wanted to give more discretion to judges, and Progressive reformers who were intent on making the legal process more accessible and fair for the everyday citizen.Footnote 40 The procedural reform bills that evolved in the early twentieth century “prompted debate about matters as diverse as the convenience of lawyers, the efficiency of judicial administration, and the constitutional power of Congress to delegate rulemaking authority to the Supreme Court.”Footnote 41
The existing rule structure at the time, the Field Code of 1848, had been ill received by the Supreme Court, who deprecated its adoption by lower federal courts. Because of this, there was little uniformity across federal courts in how they handled an array of procedural matters that affected litigation. This inconsistent use of the Field Code prompted efforts from several groups and government bodies to alleviate this problem. As early as 1872 Congress passed the Conformity Act, which required that “like cases” be treated “as near as may be” with respect to court practice and procedure.Footnote 42 In the years following, David Dudley Field (author of New York's original Field Code) led the American Bar Association (ABA) in pursuit of a uniform code of procedure that, importantly, would not place full power and control over the rules in the hands of the legislature.Footnote 43 Additionally, early in the century President Taft himself advised Congress of the need for procedural reform for federal and state courts, taking the position that “the best method of improving judicial procedure at law is to empower the Supreme Court to do it through the medium of the rules of the court, as in equity.”Footnote 44
Ultimately, it was the ABA that first took up the cause of civil procedure reform, advocating for simple and uniform rules that would also give judges more discretion and lawyers more latitude in terms of how they framed their cases. In its pursuit the ABA joined forces with Republicans in Congress, who at the time sought to expand the authority of the federal judiciary, in 1912 proposing the first version of what would later become the Rules Enabling Act.Footnote 45 For a period of almost twenty years, however, Democrats on the Senate Judiciary Committee managed to derail potential legislation. The issue of contention was the question of who should be empowered to promulgate procedural rules: while Republicans felt strongly that the Supreme Court, immune from the pressures of electoral politics, was best suited for the task, Democrats were wary of the rules stemming from so conservative and distant a governmental body.Footnote 46 By the 1930s, however, increased academic input (most prominently from Charles Clark, who became the dean of Yale Law School in 1929), and the appointment of Homer Cummings to attorney general (who served to “fill the leadership vacuum in the reform movement” by helping to revive the ABA's campaign),Footnote 47 in combination with a growing concern for the efficiency of the judiciary, tipped the scales in the direction of the ABA/Republican proposal. In 1934 Congress finally succeeded in passing the Rules Enabling Act, which gave the Supreme Court power to “prescribe general rules of practice and procedure” for the federal courts. Despite the controversy surrounding the proposed statutory directives of decades prior, the Congress that passed the Act did so without giving the bill much attention; its passage was largely the result of the FDR Administration's support of the bill. In effect, the act gave the Supreme Court centralized control over a process that had formerly been diverse and decentralized, dominated by individual state and federal courts. The resulting rules, first adopted in 1938, were crafted by a Supreme Court Advisory Committee (appointed by the Chief Justice) composed of lawyers and law professors.Footnote 48
The 1938 Federal Rules of Civil Procedure relaxed pleading rules, required information exchange, and ultimately made litigation easier. They engendered a rulemaking system of judicial committee development, Supreme Court approval, and transmission to Congress. The current rulemaking structure was put in place in 1957–58, when the Supreme Court empowered the Judicial Conference of the United States—the primary policy-setting body for the courts—to oversee rulemaking. The Judicial Conference, composed of various federal judges and presided over by the Chief Justice of the Supreme Court, in turn created a two-tiered committee structure for rulemaking, including a Standing Committee on the Rules of Practice and Procedure and an Advisory Committee on Civil Rules. The latter, now largely responsible for regular review of the rules, is composed largely of judges, as well as some practicing lawyers, law professors, and a representative from the Department of Justice. The dominance of judges (selected by the Chief Justice of the Supreme Court) on the rules committees marked a move, largely facilitated by Chief Justice Earl Warren, away from committees populated more evenly with members of the legal community. Proposed rule amendments were and are subject to review and revision by the Standing Committee, Judicial Conference, and Supreme Court before being sent to Congress.Footnote 49
Although actors in the judicial branch dominate the rulemaking process, Congress has always had the formal authority to play a meaningful role. However, the meaning and practical functioning of this shared responsibility have shifted greatly over time. The Rules Enabling Act provided that rules created by the Judicial Conference and approved by the Supreme Court would become law unless Congress acted to veto them within sixty days. In the 1950s the Enabling Act was amended to change the procedure for reporting proposed rule changes to Congress, extending the timeframe allotted for Congress' consideration to ninety days, and later (in the late 1980s) to seven months.Footnote 50 But until 1973, Congress never vetoed rule changes, much less even discussed the proposed rules given them for perusal by the Supreme Court. In this sense, the initial insulation and power of judicial rulemaking resulted from the widespread sense among legislators that the rules committees—not Congress—had the proper expertise to make such decisions. As such, the rules of the 1930s were “founded upon judicial discretion.”Footnote 51 Just a few years after the rules were promulgated, rulemakers were so accustomed to the control that they asserted that Justice Felix Frankfurter felt the need to remind his colleagues on the Court that the rules themselves were not the equivalent of laws and should not be equated with other acts of Congress.Footnote 52 As legal scholars have argued of the early experience under the Rules Enabling Act and the civil rules, “review of the work of the original Advisory Committee establishes that it proceeded without a coherent or consistent view of the limitations imposed by the Act's procedure/substance dichotomy and that the Committee therefore resolved perceived problems of power on an ad hoc basis.”Footnote 53
The fact that legislators did not think the rules were political was integral to judicial dominance of the rulemaking process. The Rules Enabling Act itself granted the Supreme Court the power to promulgate rules of procedure for civil actions only so long as these procedural rules did not “abridge, enlarge, nor modify the substantive rights of any litigant.” Rulemaking was considered “purely procedural,” not substantive; that is, rules were considered “normatively distinct from and subordinate to substantive law.” The distinction between procedure and substance was an important limiting component in Congress' delegation of rulemaking authority: “from these premises, it followed that a democratic process was not necessary to the legitimacy of procedure, for procedure involved no substantive value choices.”Footnote 54 Involving legislators (driven by electoral incentives) in the process was widely considered a threat to preserving procedural justice. Perhaps the strongest evidence that Congress truly believed in this distinction was that they were willing to give this level of discretion and authority to the judiciary in the 1930s at all, when so much of the New Deal was based on distrust of the courts and attempts to limit their powers. But instead, for over three decades the courts (and the lawyers and scholars who advised them) were viewed as “experts” who would best structure rules to protect the systemic integrity of the procedural system as a whole.
But rules are highly mutable, and actors often consider institutional rules a “tool kit” or vehicle for achieving alternative political goals or outcomes.Footnote 55 As preeminent legal scholars have noted, “procedures inherently carry with them decisions about power distribution. In determining who has the obligation to do what in the litigation process, procedural rules and statutes in the United States distribute power among parties, lawyers, judges, experts, lay community, different branches of government, state and national governments, rich and poor, corporations and individuals.”Footnote 56 Even more importantly, questions of civil procedure and litigation interact with social and political currents. During the civil rights era the rules were increasingly used as a tool for opening the door to more litigants and to a wider range of cases.Footnote 57 Beginning in the mid-1960s, several major rulemaking reforms were directed to precisely that end; for example, the 1966 amendments to Rule 23, which governs class actions, helped enable diverse sets of litigants to present themselves as individuals in court, made it easier for lawyers to represent them in a single case, and required extensive consideration as to when such litigation was permissible.Footnote 58 The related set of joinder rules were similarly revised at the same time.Footnote 59 Other examples include the rules addressing the scope of permissible discovery (primarily Rules 26 and 34), which were revised in 1970 to expand opportunities for litigants to obtain information about the opposing party.Footnote 60 Rule 53 was also amended to allow for the appointment of special masters—individuals, usually attorneys, appointed by the court to carry out some action for the court, usually a court order. Special masters proved especially important, for example, in allowing judges to undertake massive prison reform beginning in the late 1960s.Footnote 61
These rule changes, among others, played a major role in transforming the landscape of litigation in the years to follow. The sheer growth of litigation was immense; to take a wide view, the number of annual federal case filings grew from 50,320 in 1962 to 344,901 cases in 2007.Footnote 62 Civil cases grew from 71,000 cases filed in 1966 and peaked at 281,338 cases in 2004 (before dropping to 257,507 in 2007). Perhaps most striking, civil rights cases, which numbered just 1,300 in 1966, peaked at 43,278 in 1997.Footnote 63 Due especially to the 1966 rule amendments to class actions and joinder, the nature of litigation also changed. Civil cases became multi-partied and multi-claimed, and the rise of this complex litigation prompted a new set of concerns, from both judges and lawyers, as how best to handle the increase in the volume and complexity of cases. Footnote 64 At the same time, the “supply side” continued to grow and diversify, with the birth of the Legal Services Program (later Legal Services Corporation)Footnote 65 and the ABA's deepening commitment to legal aid.
Congress also did its part in aiding these developments, especially by increasing the number of federal judges and creating incentives for more litigation by providing provisions for attorney fee awards to winning plaintiffs.Footnote 66 But where judicial rulemaking was concerned, legislators left the process alone, despite the fact that many of the rules had clear political importance, and despite that the process of developing federal civil procedural rules has been called by the most influential scholars in the field the most remarkably successful “power grab by the judiciary” in history.Footnote 67
But in 1973, when the Advisory Committee drafted the Federal Rules of Evidence, Congress not only vetoed the proposed rules, but also began a new thirty-five-year period (with no end in sight) characterized by an institutional battle for control of rulemaking. As I will argue, a variety of retrenchment advocates played a role in this battle. But these retrenchers were of many different mindsets, interests, and ideological backgrounds. Indeed, some of these actors were not so much classic “retrenchers” as they were motivated by making the judiciary run more efficiently, with better capacity to handle a plethora of new problems stemming from the dramatic increase in the volume and complexity of litigation. Initial efforts at introducing a more prominent role for Congress were motivated primarily by a variety of projudiciary actors as well as legislators who saw this fight as part of a bigger set of political battles that had less to do with courts than with congressional authority. However, once Congress became more active in rulemaking reform, it opened the door to new actors with more concerted desires to scale back the judiciary—some out of self-interest, and others for ideological reasons.
The 1973 Veto and the Beginning of an Institutional Battle over Rules
With the luxury of hindsight, it seems striking that anyone would have argued that the Federal Rules of Civil Procedure were in any way, and at any time, “apolitical.” Given the impetus for the civil rights movement, it is hardly surprising that the rules were used as tools for social reform. The 1966 amendments to Rule 23, for instance, involved changes to the ability of a single plaintiff to represent a “class” of people—subsequently allowing the class action to become one of the biggest and most powerful weapons of the civil rights movement. When this rule change was discussed in the mid-1960s, the rules committee explicitly mentioned a substantive issue in its notes, referencing the famous civil rights antisegregation case, Brown v. Board of Education, Footnote 68 as a positive example of why class actions matter. John Frank, a member of the Advisory Committee at that time, said later of his experience regarding the class action reforms: “Rule 23 was in work in direct parallel to the Civil Rights Act of 1964, and the race relations echo of that decade was always in the committee room. If there was single, undoubted goal of the committee, the energizing force which motivated the whole rule, it was the firm determination to create a class action system which could deal with civil rights and, explicitly, segregation.”Footnote 69
But the question of whether or not the rules were political would not grab Congress' attention until the rules episode of 1973, which clearly marked the end of unquestioned judicial dominance in rulemaking. On March 6, 1973, following debate in the Senate, the House Judiciary Committee voted to postpone indefinitely the effective date for the proposed Federal Rules of Evidence. The evidence rules were contentious on several fronts. Rule 505, governing husband-wife confidentiality, would have required a spouse to reveal the other's confidential admissions in a courtroom. Rule 504 similarly threatened patient-doctor confidentiality. And the particularly contentious Rule 509, the so-called “State Secrets Privilege,” provided protection for secret information regarding national defense, but was written (by the Judicial Conference) in such a way that it could be asserted by virtually any attorney representing the government at any level.
The rules committees had seemingly overreached on several points. As former Supreme Court Justice Arthur Goldberg said in his testimony before the committee later that year, “some of the proposed rules extend beyond mere matters of procedure and represent real changes in the substantive rights and duties of persons throughout the country.”Footnote 70 These rule changes, similar to the class action changes of 1966, compromised the “purely procedural” varnish that the rulemakers applied to their activities and made their substantive motivations more overt. In other words, rulemakers exposed that their actions were both politically motivated and consequential, something that caught not only the attention of Congress, but also some of the justices on the Supreme Court.Footnote 71 In fact, the 1973 rules provide a rare example of a Supreme Court justice (Douglas) dissenting on their merits.
But if the rules committees had in fact used the rules as vehicles for substantive rights reform at least since the civil rights era, what caused Congress to pay attention in 1973? There are arguably two explanations for Congress' sudden interest in rulemaking. First, in response to the proposed evidence rules, Congress was barraged by interest groups that either disagreed with the content of the rules or felt that they were given short shrift in the rulemaking process. The ABA, for example, expressed frustration that rulemakers did not formally include their input. With the 1973 rules specifically, they were angered that changes were made to the rules at the very last second, leaving them with no chance to provide comment at all.Footnote 72 Self-interest took other forms as well. For example, when rulemakers considered revising the rule involving patient-doctor privilege, the American Medical Association (AMA) made their intense displeasure known to Congress. Also, the Association of Trial Lawyers of America (ATLA)Footnote 73 was alarmed that the same proposed changes would threaten their own enterprise. Testifying before the House Judiciary Committee, James Schaeffer, head of ATLA, echoed the AMA's concern that, for example, “a rule empowering the court to appoint an expert would virtually abolish any opportunity of success in medical negligence cases.”Footnote 74
Second, at a time defined by the intensive Watergate investigations and battles with President Richard Nixon over a range of constitutional powers, Democrats in Congress were particularly sensitive to real and imagined encroachments on their power. These concerns permeated the discussion over the proposed evidence rules; as New York Representative Bertram Podell worried, “we constantly hear that our prerogatives are being threatened by the expansion of Executive power. The encroachment of the judiciary upon the Congress is equally dangerous.” Moments later, he declared the Rules Enabling Act “perhaps the most open and most concerted attack on the powers of Congress in history.”Footnote 75 In general, separation of powers concerns pervaded Congress' discussion of the proposed evidence rules, especially with regard to the prospective rules of privilege, which were thought to be legislative and therefore to be necessarily enacted by the legislature. Congress was further alarmed when they learned from Judge Albert Maris, the chairman of the Judicial Conference's Standing Committee on Practice and Procedure, that his committee had been influenced by a member of the Justice Department when drafting the rule involving the “state's secret privilege.” Such an admission, at a time when Nixon Administration officials were continually invoking executive privilege to avoid testifying in the Watergate Hearings, not surprisingly caught legislators' attention and fueled their ire that something political was afoot in rulemaking.
As a result, 1973 marked a moment when Congress wanted more control over the judicial rules process and more authority vis-à-vis the Supreme Court. When legislators first began their discussion of the rules in February, many were aghast and outraged that they had not been more actively involved all along. Many seemingly learned about the rulemaking process for the first time on the floor as other members spoke. For instance, House members quickly objected to the fact that the Rules Enabling Act gave them only a limited period of time in which to review and potentially veto such technical and complicated material—a feature that had been in effect as long as the rules existed. The fact that the rules were written and developed by the Judicial Conference—not the Supreme Court—was also lost on both Congress and the national media. The New York Times continually found it surprising when Supreme Court justices claimed that they had not played an active role in the rulemaking process (pointing out, correctly, that the rules were written by a committee only vaguely overseen by the Court). To the Times, however, this was clearly a battle between the Supreme Court and Congress.Footnote 76
At the time, members of Congress were by no means opposed to the policy ends that the rules were furthering. The 1973 veto of the Federal Evidence Rules did not stem from dissatisfaction with the project of social reform; that is, anti–civil rights legislators did not motivate congressional action in 1973, nor were the members of Congress that drove these changes motivated by a desire to begin the process of scaling back the role of litigation in promoting and enforcing social policy. Indeed, just three years later Congress passed the Civil Rights Attorney's Fees Award Act, which fostered further litigation on behalf of civil rights plaintiffs. Similar types of prolitigation legislation were enacted frequently at least through the Civil Rights Act of 1991,Footnote 77 and Democratic majorities in Congress were consistently in battle with an increasingly conservative Supreme Court over the interpretation of numerous pieces of civil rights era legislation. At this historic juncture, then, what largely (though, we will see, not solely) prompted congressional involvement was the fact that legislators themselves wanted to play a larger role in the process of rulemaking. In so desiring, however, they unwittingly catalyzed what would become decades of constrictions upon judicial power and access to the courts.
The 1973 debates ended quickly and without much in the way of institutional change—in fact, there was no formal institutional change to the rulemaking process at all. But legislative involvement completely changed the landscape of federal rulemaking. Legislators began to conduct hearings on how they could get more involved in the rulemaking process. Interest groups, from plaintiff attorneys to businesses, quickly realized that they could lobby Congress to gain a greater voice in a process that previously left them on the sidelines; equally, legislators found a new avenue through which they could cater to interests (like ATLA) that tended to give a lot of money in political campaigns. It would be another two decades before the interests that we tend to associate with retrenchment—namely conservatives in the Republican Party mounting an assault on the power of plaintiff attorneys and liberal-activist judges—would come to the foreground. The first irony of retrenchment in judicial rulemaking, then, is that all of the actors initially involved came from the Democratic side of the aisle, often prompted and buttressed by liberal lobbyists. Republicans, to the degree they were involved, tended to be on the other side of the debate, as conservative judges and other judicial actors were most often in a position of defending the authority of the Nixon Administration during ongoing impeachment hearings.
The 1980s—Judges versus Plaintiff Lawyers and Their Democratic Party Allies
As retrenchment through rulemaking reform proceeded into the 1980s, the defining characteristics of the 1970s persisted; Republicans in Congress, for the most part, were still quiet on this front. Although Ronald Reagan was beginning to tout “tort reform” as part of the policy agenda of the Republican Party, and although conservative organizations such as the Federalist Society were in their beginnings, the battle over rules remained largely waged by Democratic legislators. In this section I detail the major legislative rulemaking achievements of Democrats: most notably, their successful restructuring of the rulemaking process and further empowering of their own role in the process with the Judicial Improvements and Access to Justice Act of 1988, as well as sweeping legislation under the Civil Justice Reform Act (CJRA) in 1990, which decentralized rulemaking to the district court level, removing a significant degree of rulemaking power from the federal judiciary. The Democratic legislators who passed these reforms did so under the intense lobby of the ABA, ATLA, and other public interest lawyers, all of whom wanted the rules to open up access to litigation.
Most importantly, however, the 1980s was also a period when other interests joined to reform civil rules. The significant shifts in rulemaking authority that defined the decade ultimately stemmed from a territory battle internal to the judiciary. By the 1980s the concept of a “litigation crisis” was in widespread circulation. The strain that the dramatic growth in litigation, as well as the development of “complex litigation,” created for the courts made greater case management by judges imperative. In order to overcome problems of expense, abuse, and delay, judges increasingly felt that they needed to take more control of judicial proceedings. And given that federal judges dominated the membership of the civil rules committees, they were perfectly positioned to instate procedural changes that would help to keep the justice system functioning and intact in the face of this increased demand. But taking control in this way, which included imposing firm dates and deadlines for discovery and creating sanctions for abusive lawyer tactics, conflicted with the concentrated interests of lawyers, for whom doing exactly these things is precisely the way to win cases and procure attorneys' fees. In other words, judges “favored procedural mechanisms that empowered judges at the expense of others, including lawyers, litigants, and juries.”Footnote 78 For judges, these changes were not ideological, but self-avowedly aimed at “fixing” the problems caused by an explosion in litigation that was taxing their resources.
Nonetheless, judicial committee members began to implement changes that, for the first time since the civil rights era expansions, began to constrict access to the courts. This streamlining of the judicial process caused a rift to develop between lawyers and judges, leading major legal organizations like the ABA and ALTA to join with Democrats in Congress in their pursuit of rulemaking reform, instead of joining with judges and rulemakers. Because Democrats were generally supportive of expansive litigation and access to courts, it made sense for legal groups to approach Democrats rather than Republicans on this issue, even if this led to ironic consequences in the long term.Footnote 79 As prominent civil rules scholar Stephen Burbank aptly summarizes, “it is no coincidence that at the very time when the federal judiciary was wresting power from lawyers (and their clients) by putting in place general rules that not only enabled but encouraged trial judges to take control of all civil litigation, and required them to root out abuse, the judiciary began to lose what had been essentially a monopoly of power to fashion the rules of the game.”Footnote 80
Formal Rule Changes
The rules committees implemented the first major set of rule amendments aimed at constricting litigation in 1983. Briefly, these included amendments to Rule 11, which imposed disciplinary sanctions for attorneys in order to curb abusive tactics; Rule 16, which strongly empowered active trial management and authorized judges to actively promote settlement; and Rule 26(b), which authorized district judges to restrict discovery for several reasons, including on a cost-benefit basis. Additionally, Rule 11-type sanctions were written into the other amended rules as an additional measure for constraining related abuses.
While these amendments were major retrenchment successes for rulemakers, not all of their proposals fared so well. The struggle between rulemakers, Congress, and interest groups over proposed changes to Rules 4 and 68 typified the tensions that had come to divide the groups. To take one example, Congress managed to table consideration of the proposed amendments to “put teeth into” Rule 68. The Advisory Committee sought to make the original rule—which was designed to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer “costs”—a two-way street, allowing both plaintiffs and defendants to make offers and counteroffers. Specifically, the proposal provided that a party who rejected an offer under Rule 68 and failed to obtain a more favorable judgment at trial would have to pay the costs and expenses, including reasonable attorneys' fees, incurred by the offering party after the offer was made (at the judge's discretion).
Although sanctions were fairly uncontroversial cornerstones of the amendments to Rules 11, 16, and 26, many major legal groups came out strongly against incorporating them into Rule 68. The National Bar Association, American Civil Liberties Union (ACLU), Alliance for Justice, and the NAACP Legal Defense and Educational Fund all testified against the 1983 proposal. These groups feared that the proposed changes would keep civil rights plaintiffs out of court because, if they were to lose, they would have to be able to pay the defendant's attorneys' fees as well as their own—a financial burden too large for many civil rights plaintiffs to bear. Also, because judges would have the discretion to coerce settlements by threatening sanctions, the groups worried that civil rights plaintiffs would be forced to accept plainly inadequate settlement offers out of fear that if they went to trial and lost they would not be able to pay.Footnote 81 These lobbying efforts effectively quashed the proposal, and Rule 68 has not since undergone reform.
Some of these rules—most prominently Rules 11 and 26—caused controversy again in the early 1990s. The now compulsory nature of Rule 11 sanctions, coupled with defense attorneys' rampant use of it, led to thousands of additional sanctions and opinions—precisely the opposite effect of what was intended by the 1983 reforms. More importantly, significant concern developed that these sanctions (as was initially feared) were being used disproportionately against civil rights plaintiffs in order to impede public interest litigation.Footnote 82 Given that the sanctions imbedded in Rule 26 were used similarly, rulemakers proposed amendments to both in hopes of softening their impact by making sanctions discretionary. These proposed amendments were met with unprecedented resistance, the strength of which was undoubtedly fueled once again by a stark divide between lawyers, judges, and other interested parties. District Judge Robert E. Keeton, chairman of the Standing Committee on Rules of Practice and Procedure at the time, commented at the start of the House subcommittee hearings: “it is not accidental that you are hearing from more constituencies, because as the processes of administration of justice come under greater stress and more complex litigation is presented, there are increasing concerns by participants in that process that they would like to get an edge in the procedural aspects of the matter.”Footnote 83 As a Federal Judicial Center survey indicated at that time, civil rights lawyers despised Rule 11, while 80 percent of judges supported it.Footnote 84 This division also manifested itself in a change in the alignment of rules committee supporters: lawyer groups found themselves largely on board with rulemakers, businesses (most notably Aetna) vehemently opposed the amendments, and rulemakers themselves still expressed a fairly nonideological, nonpartisan concern for the practical functioning of the judiciary. Judge Keeton reminded the rules committees that they must “resist all pressures” to give in to this interest lobbying, as their statutory mandate requires that “the rules are to be substantively neutral.”Footnote 85
The new alliances were not perfect; the ABA, for instance, wanted to remedy the increased problems of delay by relying on more management from judges, while the rules committees leaned toward increasing lawyer responsibility.Footnote 86 In the end, both rule reforms passed, but only after the discovery amendments (which would have required litigants to provide “core” materials at the outset of trial without waiting for a formal discovery request) included a provision permitting individual courts to opt out of the requirement, thereby bringing lawyers on board. The final rule changes did, however, draw dissent from Supreme Court Justices Scalia and Thomas, who claimed that the amendments would make Rule 11 “toothless,” and that the disclosure rule conflicted with the duties of American lawyers never to turn over any information harmful to their client without proper request from the opposing party.Footnote 87
Reforming the Rulemaking Process
Congress provided the conduit for rulemaking involvement that legal organizations and other interest groups could not find with the rules committees. And given that groups like ATLA tend to be major campaign donors, members of Congress had ample reason to join forces with them. These alliances fueled Congress' growing effort throughout the 1980s to increase their own (and subsequently their patrons') role in the rulemaking process. To this end, Congress debated overhauling the structure of rulemaking; specifically, from 1980 to 1985, they conducted multiple hearings regarding the question of whether or not to abolish the role of the Supreme Court (and/or the Judicial Conference) entirely in the rulemaking process. Typically, however, these hearings focused on the possibility of involving other groups—especially Congress—in the early stages of drafting rule changes. In a hearing before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice in April of 1983, Judge Edward Thaxter Gignoux, then chairman of the Standing Committee, sidestepped the issue quite characteristically of the rules committee members of the time. He argued, for example, that the problem with incorporating groups like the ABA into the rulemaking process was that it would take prohibitively long to allow them time for comment, and that “as far as the members of Congress themselves are concerned, their participation might be helpful, but I wonder if you do not have enough to do without sitting through two days of discussion of the details of the rules.”Footnote 88
Congress disagreed. Despite Judge Gignoux's position that there was “nothing the Standing Committee does which would be of any public interest,”Footnote 89 Congress felt isolated from a process that they considered democratically relevant, as well as relevant to the interests that supported them. By contrast, judicial rulemakers believed that the input of outside parties would be purely reflective of “rank self-interest,” which would only get in the way of systematic, nonideological deliberation over purely procedural concerns. This disjuncture was a recipe for major change. By the end of the decade, the desire for public accountability through enhanced participation and political oversight overwhelmed claims by rulemakers of the importance of technical expertise; as Robert Bone argues, “concerns about efficacy and legitimacy pushed the process toward an interest group model that assimilates rulemaking to legislation.”Footnote 90 Indeed, Congress emerged victorious in the institutional battle by passing two major reforms at the end of the decade: The Judicial Improvements and Access to Justice Act (1988) and the Civil Justice Reform Act (1990).
The Judicial Improvements and Access to Justice Act codified long-sought efforts to open up the rulemaking process to broad public participation by requiring public hearings, open meetings, publicly available minutes, and longer periods for public commentary. This formally obligated the rulemaking committees to hear from the plethora of the interests who were by then knocking on Congress' door. As a result, the Advisory Committee began to receive hundreds of comments whenever it circulated a draft of a proposed rule change and regularly heard testimony from a much broader array of groups than before.Footnote 91 In effect, this led to explicit political lobbying of the judiciary, the one branch of government we struggle to conceive of as immune from political influence. Despite this, the committees seemed to maintain their focus on what “made sense” for the courts in terms of practical functioning and fairness and did not appear to be “swayed by groups merely advocating revisions to the rules that will be better for their particular interests.”Footnote 92 While the committees were now officially “open” to outside interests, the interests that lost in this forum simply repeated their efforts in Congress.
Accordingly, the continued politicization of the rules made Congress ever more willing to initiate its own rule changes, albeit outside of the formal process for creating and amending rules. With the Civil Justice Reform Act (CJRA), Congress significantly disrupted the judiciary's rulemaking monopoly by decentralizing it. In an attempt to curtail the cost and delay of civil litigation, the act directed each of the ninety-four U.S. district courts to convene advisory groups to design district-level procedures to achieve these objectives, thus embracing a “bottom-up” approach to procedural reform. It directed these local groups to consider certain principles of reform, chief among them a familiar mandate: increased judicial management of litigation. Finally, it required federal judicial districts to develop civil justice expense and delay reduction plans. The legislation was perceived as bipartisan, with the real conflict manifesting itself in the institutional-level battle between legislators and the judiciary. In Senate hearings, the chair of the Judiciary Committee and the bill's main sponsor, Joseph Biden, commented repeatedly on how amazing it was that corporate law, ATLA, insurance groups, and consumers were all on the same side of the issue. Biden portrayed the legislation as an apt response to a litigation “crisis of major dimensions,”Footnote 93 and interest group lobbyists clearly agreed. An insurance lawyer for Aetna, for example, complained that the corporation had spent $370 million that year alone on litigation.Footnote 94 Bill Wagner, the head of ATLA, was less concerned about expenses, and more about having firm trial dates, which would promote settlements; “the most important thing is, I think, that this has an idea that the plans to make these tracks work are developed and monitored by the people who use the system. And I don't mean to be overly critical of federal judges, but let's face it, they see their problems, and they are federal judges and they can order us to do what they want to.”Footnote 95 Understandably, judges viewed the legislation as an attack both on their authority and on the idea of procedural fairness through uniformity. Members of the Judicial Conference, while validating the problems raised by Congress, argued that the rules committees should remain the avenue of reform, and that the bill was “extraordinarily intrusive into the internal workings of the judicial branch.”Footnote 96
In the end, the CJRA was an experiment that came and went, as the legislation was never renewed. In its aftermath, judges considered themselves “right” insofar as the act led to a morass of district-level rules that were not consistent with the federal rules (as the legislation required), and later studies indicated that it did not in fact serve to reduce expense or delay. Simply, the CJRA did not achieve its goals. And because the act required implementation by judges, what the judiciary perceived as a refusal to heed their advice came with a major cost. At the same time, Congress had made its mark; their willingness to shape the rules on their own would grow substantially in the 1990s.
Retrenchment through the Courts
Even though a coalition of Democrats was largely responsible for the retrenchment of the 1980s, the decade was by no means devoid of ideologically motivated retrenchment. The Reagan Administration was active in attempting to cut the supply side of litigation by “defunding the Left” and even trying to abolish the Legal Services Corporation.Footnote 97 But its biggest successes arguably came through Supreme Court appointments.Footnote 98 The final years of the Burger Court, and more notably the Rehnquist Court, were fiercely antilitigation in nature, which manifested itself in the 1980s in two major ways.Footnote 99 First, in Marek v. Chesny Footnote 100 the Court considered how it might reconcile Rule 68 with the Civil Rights Attorney's Fees Award Act, which entitles the prevailing party in a civil rights action to reasonable attorneys' fees “as part of the costs.”Footnote 101 Because section 1988 of the act defined attorneys' fees as costs, and because Rule 68 mandates that a plaintiff whose judgment fails to exceed a Rule 68 offer at trial “must pay the costs incurred after the making of the offer,” the Court found that the rule therefore barred the plaintiff from recovering post-offer attorneys' fees. In his majority opinion, Justice Burger explicitly rejected the argument that this would discourage civil rights litigation.Footnote 102 Constrictions upon attorneys' fees were just one piece of the Rehnquist Court's deepening antilitigation agenda; it also pursued further limitations on litigation by limiting remedies and rights of action, qualified immunity and attorneys' fees, enforcing mandatory arbitration agreements, and limiting punitive damages awards, among other changes.Footnote 103
Second, in the “Trilogy Cases” of 1986—Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, and Matsushita Elec. Indus. Co. v. Zenith Radio Corp. Footnote 104—the Supreme Court made summary judgment markedly easier to obtain.Footnote 105 Increased summary judgment activity (a determination made by a court without a full trial) was well underway in the lower federal courts prior to the trilogy.Footnote 106Celotex, the most famous of the cases, was a wrongful death suit involving a man who died from exposure to the defendant's asbestos products on the job. The Court responded with a new summary judgment standard, whereby if the party moving for summary judgment does not have the underlying burden of proof at trial, they need not provide evidence negating the other party's claim—they may simply show that the opposing party has failed to adduce evidence on a critical part of his or her claim.Footnote 107 The vast majority of the time, this has had the effect of requiring that plaintiffs, “who normally have the burden of proof at trial, must come up with evidence earlier on, simply to defeat defendant's motion for summary judgment.”Footnote 108 This forces a plaintiff to show their hand before the trial even begins. In aggregate, these cases favored defendants by enabling them, far more than plaintiffs, to ask the judge to end trial prior to giving the plaintiff the opportunity to engage in discovery. And, by moderate estimates, rates of summary judgment in federal civil cases subsequently rose from 1.8 percent of cases in 1960 to 7.7 percent of cases in 2000.Footnote 109 These doctrinal changes, in combination with procedural reform, served to significantly constrict access to the courts for minority groups and the poor—a major shift from the doctrinal and procedural innovations and goals of the civil rights era.
From the 1990s Onward: Partisan Rule Reform
“Tort reform” first became a subject of media attention in the 1980s, gathering steam and success initially at the state level.Footnote 110 At the federal level, Ronald Reagan created a Tort Policy Working Group and told national audiences “tort tales”—outrageous stories of lawyers profiting from a legal system out of control.Footnote 111 In 1992, Dan Quayle made tort reform a primary issue in the attempt to re-elect George H.W. Bush, while Bush himself declared in his acceptance speech to the Republican National Convention that opponent Bill Clinton was backed “by every trial lawyer who ever wore a tasseled loafer.”Footnote 112 A Bush pollster at the time noted the potential for electoral gains inherent in attacking trial lawyers: “trial lawyers today have the same favorability rating as Richard Nixon in 1974.”Footnote 113 In 1994, Republicans, led by Newt Gingrich, made tort reform a tenet of the “Contract with America,” demanding within it what they deemed “common sense legal reform.” And with a Republican majority in the House for the first time in four decades, retrenchment through the rules (or rule-related matters) became more the story we would have expected it to be all along: a Republican-dominated Congress using its political unity to more fully sidestep the formal rulemaking process. Legal and interest group alliances also fell into familiar patterns, with plaintiff groups and lawyers supporting Democrats, and business and the corporate defense legal community lining up with Republicans. Additionally, with the Rehnquist Court now in full operation, the Supreme Court continued to further its own antilitigation agenda.
By this time, rulemaking authority had thoroughly shifted from the traditional judicial model stressing the importance of “experts” to legislative dominance of the rulemaking process. Given that members of Congress were now lobbied regularly regarding rule-related matters (often in response to the amendments proposed by rulemakers themselves), they seemed to feel validated in exercising an increased freedom to propose their own rule reforms through legislation, leading to what might be considered rulemaking in the shadow of Congress. At the same time, the rules committees managed to retain some measure of authority—if not directly for themselves, for judges—even amidst clear legislative dominance. They did so primarily by loosening mandatory sanctions and discovery procedures and increasing judicial discretion over the processes. When the Rule 26 disclosure obligation and the scope of discovery were revisited in 2000, the proposed reforms—which narrowed the obligation of initial disclosure as well as narrowed the scope of discovery and made it nationally binding—went into effect without congressional intervention, in sharp contrast to the explosive political opposition that similar reforms prompted in decades prior. This was consistent with what was by then the House and Senate's propensity to go along with anything that even remotely promised less civil litigation.Footnote 114 This tactic also clearly relied on the political realities of the time; with Republicans and conservative judges in the majority, reforms aimed at increasing the discretion of judges were by nature compatible with efforts to lower litigation rates and judicial overburden.
Congress Tackles Procedural Reform
The most high-profile procedural developments from the mid-1990s onward, however, have undoubtedly come from Congress, evidencing the thoroughness of this shift in rulemaking authority. The 104th Republican Congress moved quickly to seek “common sense legal reform,” and—as a central tenet of their Contract with America—the proposed reforms were decidedly antilitigation in nature. Their legislative success, however, was thwarted (not surprisingly) by a series of vetoes from President Clinton. In 1996 Clinton vetoed the Product Liability Fairness Act, which would have limited the amount that plaintiffs could receive in punitive damages in product liability cases. In doing so, Clinton defended consumer groups (and, more quietly, trial lawyers) against Republican presidential candidate Robert Dole's active support of the legislation. In the same year he vetoed the Attorney Accountability Act, which would have codified a “loser pays” attorneys' fees system and placed limits on punitive damages.Footnote 115
Clinton also vetoed the Private Securities Litigation Reform Act (PSLRA), which amended Rules 9 and 11, only to be met with Congress' first successful override of his administration. The legislation amended Rule 11 so as to reverse much of its 1993 reform, once again making the threat of lawyer sanction more imposing for cases arising under the law. Importantly, in doing so Congress superseded Rule 9, which deals with the amount of particularity and specificity that an investor needs to provide in order to bring litigation on the grounds of security fraud, by heightening pleading requirements statutorily. Originally, the civil rules were written such that pleading—the act of bringing litigation in courts—was fairly easy; a potential plaintiff needed relatively little information about the defendant beyond a stated legal grievance when first filing a claim in court. The rules were further designed so that, once in court, the plaintiff could then acquire relevant materials about the opponent through the process of discovery. But in the 1990s, high-tech firms in Silicon Valley in particular pushed hard for reform that would make pleading more difficult. Intel and other Silicon Valley start-ups, as well as the defense bar, sought reform that would make it harder for investors presuming fraud to sue without pre-existing factual knowledge. On the other side, investors wanted the opportunity, when their investments plummeted, to use discovery to get access to materials potentially indicative of fraud behind their drastic financial losses.
Numerous Democrats joined the vast majority of Republicans (except Arlen Specter and John McCain in the Senate) in overriding the Clinton veto. Key Democrats seemed torn between ties to the numerous big interests involved—trial lawyers, public interest groups, and the American Association of Retired People (AARP) on one side, and technology firms, big business, and insurance (which helped sway the head of the Democratic National Committee, Chris Dodd, because of the importance of insurance to Connecticut politics) on the other. Democrats were also angered that Clinton had vetoed the bill for what, as Senator Harry Reid suggested, “seemed to be pandering to the trial lawyers, who have been generous in their support of him.”Footnote 116
Moving onward from “common sense legal reform,” Republicans in both houses began pursuing perhaps their most ambitious goal yet: class action reform. Starting in 1997 and over the course of the following eight years, Republicans held a series of committee hearings on the topic, brought votes to the floor, and often found themselves close—but without the bipartisan numbers—to pass a Senate cloture vote. With Republicans setting the agenda, the committee hearing participants changed dramatically: the ABA was replaced by the Federalist Society, and appearances by rules committee members became increasingly infrequent. The debate within Congress over whether they had the authority to reform the rules ceased, and the judicial committees became fairly marginal. Even so, it was the rules committees that first managed some measure of class action reform, enacting several seemingly uncontroversial (though effectual) amendments in 2003 with the goal of providing district courts the tools, authority, and discretion to closely supervise class action. Some of the biggest Democrats to participate in the reforms of the 1970s through the 1990s were now some of the most fervent opponents of reform—as Senator Biden pronounced of his support for trial lawyers, “I'll pay the bottom feeders their high fees to stop the wrongdoers from doing bad things.”Footnote 117
Continuing to further the cause, George W. Bush put tort reform high on his agenda from the very beginning of his run for president in 2000. An early version of what would become the Class Action Fairness Act first passed the House in 2001 and came within a vote of cloture in the Senate in 2003 and 2004. When the bill was once again considered in 2005, the successes of interest groups like the Chamber of Commerce in defeating high-ranking Senate Democrats opposed to tort reform (such as Tom Daschle in 2004) and a few Democrats willing to cross the aisle (including high-profile members such as Dianne Feinstein and Barack Obama) pushed the numbers in the Senate high enough to override a filibuster attempt.Footnote 118 On February 18, 2005, President Bush and other Republican leaders trumpeted the passage of the Class Action Fairness Act (CAFA). On the eve of its passage, Bush declared that “a capitalist society depends on the capacity for people willing to take risks and say there's a better future … legal reform is part of a larger agenda to make sure this economy of ours continues to grow.”Footnote 119 Unlike in 1995, when the major news media paid scant attention to the passage of the PSLRA (despite its ongoing significance),Footnote 120 the class action legislation made front-page news in the Washington Post and New York Times.
The CAFA expanded upon the 2003 rule amendments, which had provided greater judicial control over when a class may be certified, when and who may be appointed attorney, and the amount of attorneys' fees. While the earlier amendments relied on judicial discretion as a means for constraining litigation, the CAFA codified this goal by superseding Rule 23 in several respects. Specifically, it 1) altered federal “diversity” jurisdiction so that only “minimal” instead of “complete” diversity is required for large interstate cases, 2) changed the rules for removing cases from state to federal court, and 3) imposed limits on apportioning recoveries by class members and their attorneys. The act is somewhat counterintuitive in terms of its potential for retrenchment; it works by shifting most class action lawsuits involving diverse parties from the state to the federal level, with the goal of bringing as many class actions into federal court as possible—which at first does not sound like retrenchment at all. However, the legislation was premised on the belief that fewer class actions would be certified in federal court than in state courts. As such, this change in venue would serve to alleviate the rampant “forum shopping” for state jurisdictions that are historically most receptive to class action suits, which would arguably only serve to enrich trial lawyers. The goal of the act, then, was to lessen the incentive to bring frivolous suits and to lower remedy amounts.
Retrenchers interested in scaling back litigation against corporations were ecstatic. Insurance stock prices surged dramatically immediately after the passage of the law.Footnote 121 Business interests credited their own “massive effort”—“these are the level of resources it takes to beat the trial lawyers in the U.S. Senate.”Footnote 122 It is not as of yet entirely clear, of course, what effect the reform has had. By the time the act was passed, several of the states considered to be especially proplaintiff, both in their decisions and awards (namely Alabama, Louisiana, and Mississippi) were already themselves starting to crack down on class actions.Footnote 123 Initial reports from the Federal Judicial Center indicate that there has been an increase in the number of diversity class actions filed as original proceedings in the federal courts since the act was passed, but it is not self-evident that the federal courts decide most cases any differently.Footnote 124 This would rely on federal judges acting far more favorably with regard to defense interests than do state court judges. However, data as of yet lend little support to the claim, and the amount of monetary awards has thus far evened out in the wash. Nonetheless, at least politically, the CAFA has been touted as a major retrenchment success for Republicans.
Rule Retrenchment in the Courts
Recent decades have not only been a heyday for retrenchment advocates in Congress, but also for advocates on the courts. The antilitigation work of the Rehnquist Court continued fairly seamlessly into the 1990s and 2000s, and has at times served to retrench rules in places where elected officials have failed. In finding ways to keep plaintiffs out of courts, the Supreme Court continued to reduce their willingness to find private rights of action in statutes, narrowed the standing doctrine, further developed “qualified immunity” for government officials accused of violating the civil rights of private citizens, and construed the Eleventh Amendment such as to make it nearly impossible to receive damages from states. In matters more closely related to the federal rules, the Court again expanded opportunities for summary judgment in Scott v. Harris (2007) and further raised their pleading requirements in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009).Footnote 125 The latter two cases, while recent, have already had a profound effect on both litigation behavior and results. As recent expert testimony before Congress on the effects of these cases made clear, a sample of lower court cases already indicates that complaints have been dismissed that would not have been prior to the Supreme Court's newly heightened pleading requirements, leading to the conclusion that “Twombly and Iqbal have had a disproportionately adverse impact on the usual victims of ‘procedural’ reform—civil rights plaintiffs.”Footnote 126
In 2001, the Court dealt its most crippling blow yet to the availability of attorneys' fees for plaintiffs in civil rights cases. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, Footnote 127 the Court tackled the question of whether or not a “prevailing party” could include a party that had failed to secure either judgment on the merits or a court-ordered consent decree, but who nonetheless achieved the desired result because the lawsuit caused the defendant to voluntarily alter their conduct. Despite the fact that nearly all circuit courts had adopted this so-called “catalyst theory” for fee recovery, the Supreme Court held that voluntary changes in behavior did not suffice for a fee award unless the change was made binding by judicial decree. The Court argued that, without a court order, “a defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”Footnote 128 In effect, the Court's ruling permits defendants to litigate equitable claims to the point of judgment and then to avoid fees by consenting to the relief requested. This further undermines the private enforcement of statutory rights by cutting the incentives for bringing such cases.Footnote 129
Additionally, after President Clinton essentially tabled the matter in the mid-1990s, the Supreme Court further pursued limiting punitive damages well into the 2000s. As another means for reducing litigation, punitive damages have always been closely connected to the tort reform debate. They represent a substantial portion of the costs of our current legal regime; however, critics of our system have also “increasingly questioned whether the perpetuation of such damages continues to reflect a majoritarian political choice or instead reflects only the entrenched interests of lawyers and judges, who profit respectively from the substantial fees produced by large damage awards and the power implicit in formulating the rules that govern American business practices.”Footnote 130 Accordingly, in at least eight decisions since 1988, the Court progressively limited the availability of these damages.
Interestingly, the Court has pursued this strategy by constructing a constitutional law of punitive damages, resting primarily on the due process clause of the Fourteenth Amendment. In several cases, most prominently BMW of North American, Inc. v. Gore, Footnote 131 the Court established that a ratio of punitive and compensatory damages exceeding 10:1 is almost certainly unconstitutional. Unlike in other areas of the tort reform movement, “the Justices are not simply interpreting statutes or crafting common law doctrines that might be overturned by congressional enactment. Instead, they are taking the bold step of determining that certain aspects of our existing litigation culture so transcend the Constitution's basic fairness norms that they are per se verboten.”Footnote 132 Because the province of determining the constitutionality of an area of law is theirs alone, the justices benefit from significant insularity in these retrenchment efforts. By constitutionalizing a means of tort reform, they also appropriate a per se legitimacy for the project that is hard to match or attack.
Despite the conservative composition of the Court, legal scholars have increasingly explained that categorizing the work of the Rehnquist (and now Roberts) Court as a simple extension of Republican Party policy preferences is often inaccurate and misleading.Footnote 133 These most recent constrictions on attorneys' fees provide an illustrative example. In 1980 Congress passed the Equal Access to Justice Act (EAJA), which has subsequently been renewed and amended over the course of the last three decades in order to reduce the disadvantage in economic resources faced by parties who challenge unreasonable governmental actions. As the legislation has evolved over time, it has accomplished this end in two ways. First, it gives the courts discretion to impose fees against the federal government to the same extent as against private parties, and second, the act authorizes payment of attorneys' fees to a “prevailing party” unless “the position of the United States was substantially justified or that special circumstances make an award unjust.”Footnote 134 The assessment of fees under this provision is mandatory, except for stipulated special circumstances. As such, the act creates a presumption in favor of a prevailing party and shifts the burden to the government to demonstrate that its acts were reasonable.
While civil rights plaintiffs (who are typically the focus of the ongoing conversation about attorneys' fees) have had more than ample reason to bring claims against the federal government over time, it is easy to forget that they are not the only plaintiffs interested in suing.Footnote 135 The changes provided through the EAJA were not intended solely to serve a liberal cause; in fact, the proponents of the original 1980 act were primarily conservatives who wanted to encourage businesses and corporations to litigate against the federal government. Republicans introduced the original legislation, and the Senate “debates” that followed were so clearly nonpartisan as to more accurately be characterized as “nondebates.”Footnote 136 The Supreme Court's continued constriction of attorneys' fees, then, is not only a disadvantage to liberal causes, but to conservative ones as well.
Conclusion
By utilizing a more robust idea of what constitutes the judiciary as an institution, the case of retrenchment of and through the Federal Rules of Civil Procedure highlights actors, targets for institutional reform, and political episodes that are integral to legal power and political change. In the case of the civil rules, actors seeking to lessen the political influence of the judiciary succeeded in both constraining judicial authority and constricting access to the courts. At different moments in time these efforts came from actors both inside and outside of the judiciary, were partisan, cross-partisan, and even nonpartisan in nature, and represented actors and interests far beyond justices and judges. The federal civil rules is far from the only judicial institutional target attacked in this way: over the course of the last half century retrenchers have developed a canon of administrative law and procedure, as well as venues for alternative dispute resolution, that increase deference to the political branches and relegate certain types of rights claims to quasi-judicial administrative hearings. They have attempted to “defund” the government provision of legal services and reduce the availability of attorneys' fees for civil rights plaintiffs; and they have severely curtailed the provision of certain types of remedies (such as punitive damages), as well as the provision of remedies to certain groups of citizens (prisoners and immigrants, for example).Footnote 137
These retrenchment efforts have had significant effects on the ground. Litigation has slowed in the late 1990s and early 2000s,Footnote 138 more cases settle than ever before (which has been empirically shown to disproportionately affect civil rights plaintiffs),Footnote 139 and fewer and fewer cases actually make it to trial.Footnote 140 Whereas fifty years ago 11 to 12 percent of federal civil cases had a trial in open court, today only 1 to 2 percent of federal civil cases make it to trial.Footnote 141 By attacking the institutional mechanisms of the judiciary—its rules, its practices and procedures, and the incentives that energize and empower actors who engage them—retrenchers have found a pliable and often successful method for scaling back judicial authority and access to justice. But because of their less obvious nature, these efforts have often flown under the radar in political science.
Although I do not wish to dismiss the arguments of regime politics scholars that legislators and executives inform judicial power, the case of federal rule reform suggests that we must also focus on the role of actors internal to the courts—not only justices on the Supreme Court, but a variety of political and legal actors whose agendas intersect with the judiciary—as potential determinants of institutional change. Moreover, while Supreme Court jurisprudence is an important component of retrenchment, we cannot overlook the range of institutional mechanisms that retrenchers regularly, and often successfully, target in their pursuit of constricting judicial authority and access to the courts.
In conceiving of retrenchment as a distinctive political process my analysis here yields three claims in conclusion: 1) the groups and political cleavages involved in judicial retrenchment change over time and are motivated by more than mere partisan backlash; 2) the processes of retrenchment are distinctive but not static, unfolding in a series of methods for attempted institutional change over time; and 3) the availability of institutional “rules” that are less subject to partisan battle enhance the likelihood of effective change. I expand on these claims below.
Groups—In the battle for authority over the Federal Rules of Civil Procedure, institutional actors either endogenous to the judiciary, or who derived significant benefits from it, drove the initial retrenchment efforts. Specifically, judicial retrenchment was led by liberal lawyers and Democrats in the 1970s in an institutional venue largely separate from the Supreme Court. In the 1980s, this coalition was joined by yet more nonideologically motivated actorsFootnote 142—namely legal reformers internal to the rulemaking process who sought to adjust the structure of the judiciary so as to better handle the growing burdens upon it. These actors were not motivated by partisan interest or an ideological desire to scale back the power and scope of judicial authority. Some simply wanted a greater say in the rulemaking process. Others were primarily concerned with protecting the systemic integrity and practical functioning of the judicial system, and still others unwittingly instigated retrenchment by acting to protect their own institutional positions. Once these actors reformed the rules process, they opened the door for alignments of actors with intentions that fit a more conventional understanding of political retrenchment.Footnote 143 By the mid-1990s, retrenchment efforts were dominated by Republican legislators and lobbyists who primarily sought to cut down on public interest litigation.
Modes of Change—The case of the federal civil rules illustrates the explanatory power of Jacob Hacker's retrenchment typology when it is employed temporally.Footnote 144 The entrenchment of the civil rules emerged in a very unusual environment in American politics. There were very low barriers to authoritative change; the rules committees made the rules with a high level of deference from others on the grounds that these rules were merely “technical.” In addition, the rules themselves proved to be highly malleable. As a result, entrepreneurial trial lawyers and judges could easily stretch them to find new ways to bring cases to the federal courts. Ironically, this combination not only set the stage for the development of new judicial powers but also planted the seeds of retrenchment, because this environment made it easy for the courts and lawyers to overreach. This overreaching, in turn, set the stage for the split between trial lawyers, who favored ever-wider access to the courts, and judges, who found themselves swamped by a large influx of claims and concern for the functioning of the courts.
Meanwhile, the political environment shifted, as Watergate encouraged Congress to become more concerned about protecting its prerogatives and opening up the rulemaking process. The result, to use Hacker's language, was that the barriers for authoritative change rose as fights over the rules shifted to the normal legislative process, which bristles with veto players and veto points.Footnote 145 This had two effects in terms of institutional change. On the one hand, efforts to make authoritative changes became much less effective, as indicated by the checkered record of tort reform at the federal level, even during periods of unified Republican government.Footnote 146 On the other hand, conversion in the Supreme Court emerged as a key mode of retrenchment, as conservative justices both developed and molded existing doctrine so as to make dockets more manageable and cut off access to the courts.Footnote 147
Importance of Rules—A major reason why there were such low barriers to authoritative change in this case was because the federal rules themselves were long considered to be “purely procedural,” technical, and therefore the province of experts. It was these characteristics that gave rulemakers such a high level of discretion that went uninterrupted for so long. Rulemakers eventually overreached—a common hazard of such a situation—and subsequently lost their insularity.Footnote 148 But even once control over rulemaking exploded into an institutional battle, and even after Congress began to engage in rulemaking, rulemakers maintained a fair amount of discretion. When Congress has subsequently diverted its attention to its own rule reform pursuits (as was the case with class action reform), rulemakers have been able to promulgate rule changes without much attention or interference. The very presence of malleable, institutional rules that afford those who control them a high degree of discretion and insularity makes the difference in this case, helping to enable reformers in their quest for judicial institutional retrenchment. Institutional “rules,” then, appear to be an indispensable tool for institutional reform. When available, I argue, they provide an ideal mechanism for retrenchment (and development) efforts, increasing the likelihood of successful institutional change.
In sum, retrenchment of and through the federal civil rules in the years following the New Deal illuminate retrenchment as the product of what might be called an “institutional maintenance” imperative.Footnote 149 Foundational efforts to constrict access to courts and to consolidate judicial rulemaking authority were born of a concern for the increasingly overburdened legal system in the rights revolution era. The initial groups and government actors involved in retrenchment were on the one hand largely supportive of the expanded rights protections that were the product of the era; on the other hand, however, they also recognized the practical perils that these changes wrought for the judiciary. In seeking to protect the systemic integrity of the justice system by easing the growing burdens of expense, delay, and complex litigation, these groups found themselves sometimes fighting alongside—and sometimes against—lawyers operating with their professional (as opposed to political) interests in mind. As the scope of conflict expanded beyond judges and lawyers, and institutional maintenance efforts grew increasingly intertwined with political battles, more and more groups were drawn into the fray—often unwittingly, or at least without retrenchment as their primary motive.Footnote 150 With the continued expansion of the scope of conflict, retrenchment efforts in recent years have fallen more into the political alignments and patterns that law, APD, and regime politics scholars more broadly might have expected all along. However, as well as these approaches might capture retrenchment efforts as we see them today, this is in fact only a very recent phase of what is a much longer and more complicated institutional story.
