Tuesday, October 9, 2007
Click the link at the bottom of this post to listen to an interview with Prof. Edward Harnett, the Richard J. Hughes Professor for Constitutional and Public Law and Service at Seton Hall University School of Law, about his article Against (Mere) Restyling, published in the Notre Dame Law Review last year. The article is timely because the restyling amendments take effect on December 1 unless Congress intervenes. It was Prof. Hartnett's article that helped convince us to oppose the amendments so we were especially pleased he agreed to talk to us. Many thanks to Prof. Hartnett for a great interview. The abstract for Against (Mere) Restyling is below.--Counseller
The Federal Rules of Civil Procedure have been completely rewritten. Unless the Supreme Court balks or the Congress intervenes, the bench and bar will be using the new restyled version of the Federal Rules of Civil Procedure in a little more than a year.
As have other procedural reformers before them, the restylists seek to make procedural rules simpler, clearer, more accessible, and easier to understand. Yet the restylists have set themselves a goal that is at once insufficiently ambitious and overly difficult. Unlike prior reformers, they do not seek to create a better procedure. Unlike those who brought us the original Federal Rules of Civil Procedure, they do not seek to supersede reexisting statutory procedures. To the contrary, the restylists attempt to completely rewrite the Federal Rules of Civil Procedure while leaving the law of procedure the same as it was before their reform.
This task is nearly impossible, as this Essay illustrates with some examples drawn from the changes made to the proposed restyled rules in response to public comment. In addition, the goal of preserving existing meaning is at war with the goal of clarity and simplicity. Rather than confront this dilemma head on, the proposed restyled rules add an additional layer of ambiguity, and do so in a way that brings to the fore the interpretive battle that rages between those who follow the plain meaning of the text and those who seek the lawmakers' purpose in legislative history. Finally, although the restylists have attempted to prevent their handiwork from superseding statutory procedures, their method of doing so rests on a view of the supersession provision of the Rules Enabling Act that is almost certainly wrong.
For these reasons, the proposed restyled Federal Rules of Civil Procedure should not be approved.
****Update: You can find all of our restyling posts summarized here.