Thursday, February 28, 2008
I invite you to read my new article Rooting For The Restyled Rules (Even Though I Opposed Them). The article dovetails nicely, I think, with discussions we had here with Prof. Hartnett and here with Prof. Parker about the Style Project. Please email me any comments you have, and I'll be sure to thank you in an asterisked footnote. The abstract follows--Counseller
The Restyling Amendments of December 1, 2007 made top-to-bottom changes to the text of the most important and successful set of rules in the American civil justice system. These amendments are the culmination of more than fifteen years of work by members of the Rules Committees and their style consultants. The goal of these Restylists was to redraft the Rules to improve style and clarity without changing meaning. In short, they sought to achieve “clarity without change.” The Restylists are confident they achieved this goal, but not everyone shares their confidence. Critics worry that the Restylists made unwanted changes to the law of procedure, despite their best efforts to avoid them. Critics also believe that improving merely the style and clarity of Rules did not justify the costs of transitioning from one set of rules to another and that the Restylists may have sacrificed other more important reforms on the altar of the Style Project. I have never been certain that the criticisms are accurate, but I decided that an improvement in the mere style of the Rules did not justify much uncertainty. For this reason, I joined other critics in opposing the enactment of the Restyling Amendments in an essay titled The Restyling of the Federal Rules of Civil Procedure: A Solution in Search of a Problem. Now that the Restyling Amendments are effective, however, I am rooting for their success and urging other critics to do the same. Whether the Restyling Amendments should have been adopted in the first place is now moot. The issue now is what we can do to maximize the chance that the Restyled Rules will succeed, despite their faults. This year alone, the Restyled Rules will affect the rights and obligations of hundreds of thousands of litigants. We must hope and work to ensure that the Rules function as their supporters believed they would rather than as critics like me feared they would. This article is a call to optimism and action. It calls for critics to be optimistic that the Rules will not be as problematic as we feared and provides the rationale for that optimism. This article also calls for action on the part of the Advisory Committee to eliminate the known and undesirable substantive changes resulting from the Restyling. This critical support and Advisory Committee action will help to ensure that the Federal Rules of Civil Procedure are a model of both clarity and procedure.