Wednesday, July 25, 2007

Restyled Rules: Pros and Cons

On December 1, 2007, unless Congress intervenes, the “restyled” Federal Rules of Civil Procedure will take effect. The restyling was not intended to alter any meanings; it was intended only to make the Rules clean, clear, and consistent.

Professor Michael Dorf has this interesting article on FindLaw about the new rules, in which he expresses support for the changes as a teacher but acknowledges that they may actually create some confusion for practitioners. He notes the risks of interpretive difficulties (do you look to the new or old or both when trying to discern meaning?) and of supersession uncertainty (will the restyled rules trump all preexisting, conflicting statutes?).

Taking a somewhat different view of the same problems, Professor Edward Hartnett recently published an article entitled “Against (Mere) Restyling,” in which he argues that the restyling creates more problems than solutions. He illustrates the problems with a few key examples, including Rule 65.

I expect we will hear more opinions about the rules as December approaches, but are there any thoughts—from academic, practicing, or pedagogical viewpoints—now?

****Update:  You can find all of our Restyling posts summarized here.

HAT TIP: Thanks to Howard Wasserman for forwarding me the Dorf article and the idea for this post.

--Scott Dodson

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Yes, "re-styling" may be somewhat dangerous. At first, one has to think hat the stated intent of the revisions should encourage proper interpretation. But a collision between the stated intent and the actual language of a rule seems almost inevitable.

Posted by: Greg May | Jul 25, 2007 9:17:26 AM

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