Saturday, January 2, 2016

Chief Justice’s Year-End Report Praises Rules Amendments Sought by Corporate Defendants

          Last year, I complained that the Chief Justice’s Year-End Report for the federal judiciary was irrelevant to real-world concerns.  This year, I cannot complain about Year-End Report's relevance; it focuses mainly on the recently-effective amendments to the Federal Rules of Civil Procedure.  But I can complain, a lot, about the Report’s lack of candor.       

          As been his custom for these year-end reports, the Chief Justice opens with a dull, lengthy historical reference.  Last year it was the Supreme Court's 1935 installation of a pneumatic tube system; this year it’s a dueling book.  The Chief Justice talks about a 22-page booklet published in 1838 setting forth detailed rules on dueling.  The dueling rules, he says, were supposed to “ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—[and thus] would in fact save lives.”  But alas, the code “had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.”  Three decades later, “[p]ublic opinion ultimately turned against dueling as a means of settling quarrels.”

          Somehow, this is supposed to relate to the recent amendments to the federal rules.  The implication seems to be that civil discovery today is like dueling, and the new amendments will civilize the barbarism.

          The dueling analogy isn’t clear to me.  If an elaboration of dueling rules led to increased killing, then the elaboration of the federal discovery rules will lead to . . . what?  More lawsuits being killed?  And if “public opinion” ultimately turned against duels, does that mean public opinion should turn even further against plaintiffs who bring civil lawsuits? 

          Setting aside the baffling dueling rulebook analogy, the Report continues with a paean to the process by which the rules are amended.  Federal procedural rules such as the recent amendments, enthuses the Chief Justice, “are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large.”  But the “primary work” of rules amendments, he explains, is done through the Advisory Committee and the Standing Committee.

          The Chief Justice’s characterization of the rules amendment process is meant to imply that the process ensures a national consensus and an impartial solution that will affect all litigants equally.  But these suggested implications are false.

          Here’s the dirty underside of the rules amendment process.  What the Chief Justice doesn’t mention is that he has the sole, unfettered power to appoint the members of the Advisory Committee, the Standing Committee, and the members of all the other federal rules committees.  And he has exercised this power to appoint committee members who are predisposed to favor restrictions on discovery.  For example, at the time these rules amendments were adopted, seven of the eight federal judges on the Standing Committee were appointed by George W. Bush.  As for the Civil Rules Advisory Committee, I wrote recently, “thirteen of the fifteen members of the Advisory Committee had at least one of the following characteristics: they were appointed by a Republican president, clerked for a Republican-appointed Supreme Court justice, work or worked for a defense-oriented, large corporate law firm, and/or are affiliated with the Federalist Society or Lawyers for Civil Justice.”

          To be blunt, the Chief Justice has stacked the deck, continuing a tradition of Republican-appointed Chief Justices. Professors Stephen Burbank and Sean Farhang have recently provided a statistical analysis that shows that, “beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement).”  

          So the rules amendment process does not actually require that the rules committees fairly and impartially adopt rules that affect all litigants equally.   The committees are just required to follow an elaborate process that includes allowing for public comments on proposed rules.  Thus, the Chief Justice asserts that rules are developed with “input from all facets of the legal community, including judges, lawyers, [and] law professors.” 

          What he doesn’t say is that the input on these amendments from most “facets of the legal community” was largely ignored.  Plaintiffs’ lawyers overwhelmingly opposed these amendments, while defendants’ lawyers overwhelmingly supported them.  That is because plaintiffs need discovery more than defendants, and these amendments restrict discovery.  In addition, at least 175 law professors (including me) signed onto written comments to the Civil Rules Advisory Committee opposing these amendments. (See here, here, herehere, here, here, here, here, and here.)

          The Chief Justice referenced the 2010 civil litigation conference as the birthplace of the recent rules amendments.  But he does not reveal that the conference initially concluded (in a Report to the Chief Justice) that there was no need to change the scope of discovery.  Yet for some reason, the Advisory Committee went back to the drawing board and voilà – the “proportionality” amendments restricting the scope of discovery were born.  Is it a coincidence that these discovery amendments largely parallel a 2010 proposal of a group of defense organizations (click on Lawyers for Civil Justice, et al., Reshaping Civil Rules)?    

          The Year-End Report also regurgitates the defense mantra that “in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts.”  In repeating this mantra, the Chief Justice overlooks the studies of his own research arm, the Federal Judicial Center, which found that discovery worked well and at moderate cost in most federal cases.  In addition, government statistics show that the median lifespan of a federal civil case has not increased in forty years:


Median months

    from filing to disposition











          Of course, this is a national median, meaning that civil cases take more time in half of the district courts and even less time in the other half.  And individual cases vary widely from the median.  But the stable length of the median civil case is remarkable.

            Finally, far from a runaway court system, the Appendix to the Year-End Report states that court filings have decreased in every level of court in the federal system – Supreme Court (4.65% decrease), appellate courts (4% decrease), district courts (a 6% decrease in civil filings and a 1% decrease in criminal filings), and bankruptcy courts (11% decrease).  In particular, federal civil case filings – the filings most pertinent to the Chief Justice’s ode to the new FRCP amendments – have remained about the same for the past 20 years.  There were 269,132 federal civil filings in 1996, and 279,036 filings in 2015, a 4% increase.  In the same twenty-year time period, the US population increased about 21% and real disposable personal income per capita increased about 34%.

          Professor Elizabeth Thornburg wrote last year, “The Supreme Court consistently signals its contempt for the discovery process.”   The Chief Justice’s Year-End Report for 2015, sadly, provides a recent example.

Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News | Permalink


Dear Patricia
I agree wholeheartedly with your brilliantly clear post.

However, I do wonder about your use of the steady data on time to disposition. I do not think it tends to show we have no real problems. The fact is that over that period, case filings went way up, and thus steady time to disposition means less justice per case (with the vanishing trial being just one bit of evidence).

I draw on the Congestion Equilibrium Hypothesis, which holds that any reduction in delay increases the incentive to litigate and reduces the parties’ incentives to settle, with the consequent increase in litigation offsetting the reduction in delay. Therefore, most attempts at reform will only increase the number of dispositions, rather than decreasing the time to disposition.

The reason is that the attempt to accelerate litigation will be largely offset by an increase in the amount of litigation. For example, adding judges to the system to reduce congestion is similar to expanding the lanes of a freeway, an improvement that would draw traffic off the side streets and from public transportation.
More cases might flow into the system, and the lesser burden of litigating might reduce the subsequent incentives to settle rather than litigate, so the increased number of judges would be able to adjudicate basically the same percentage of cases filed in the same time frame.

This leads to my view of a Dynamically Interactive System: In the mid-1970s court filings started going up. The lawmakers increased the system’s capacity—but it was not enough, partly because having more judges induced more filings. The judiciary reacted with increased attention to judicial management and a new emphasis on motion practice—the granting of pretrial motions augmented. Parties refusing to settle had to wait slightly longer for trial—and this disincentive, by lowering the expected value of a tried judgment, decreased the number of trials. But the disincentive was not enough to reverse the increase in case filings, and so the cycle continued—more cases came, of which more ended early and fewer reached trial.

Thus, the steady time to disposition describes an adjudicatory system in equilibrium—all the changes offset one another, so that the equilibrium held as far as delay goes. The last four decades’ drastic increase in caseload would necessarily correlate with drastic changes elsewhere in the system, such as the observed drastic decline in civil trials—even though it makes little sense to speak of cause and effect in this kind of dynamically interactive system.


Posted by: Kevin Clermont | Jan 4, 2016 7:07:06 AM

So realistically, the only way the party who gets to nominate the Chief Justice changes is via an unexpected death of the CJ under a Democratic president. Any CJ close to retirement age under a Republican president is likely to retire early on in that presidency to give that president the maximum time possible to nominate and receive confirmation on a replacement to avoid the Fortas problem (sitting CJ at retirement age unable to retire since a Congress controlled by the opposite party refuses to confirm a replacement). Kinda morbid.

Posted by: Salty Dog | Jan 4, 2016 8:52:36 AM

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