Wednesday, October 19, 2016

Coleman on One Percent Procedure

Brooke Coleman has posted on SSRN her article, One Percent Procedure, 91 Washington Law Review 1005 (2016). Here’s the abstract:

In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.

This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.

As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.


Federal Rules of Civil Procedure, Recent Scholarship | Permalink


What Professor Coleman says needed to be said:

"a system of civil procedure that is of the one percent, by the one percent, and for the one percent"

Thanks to Professor Coleman for saying it! :)

More needs to be said. The one percent solution is deeply in grained in the rules, more than is generally recognized. Here, are five points to start:

(1) The Federal Rules were created in the 1930s for the one percent. Up until then, the Conformity Act governed, so that state and federal courts in the same city would have, in theory, the same rules. By making federal rules uniform nationwide, the benefit flowed to those who might litigate nationwide.

(2) In the course of establishing the federal rules. Shelton and other backers sought first and foremost to substitute lawyer written rules for legislature written ones. The one percent structure reflects that. In the arguments about the Enabling Act, there was less discussion of what the rules would be and more about who would write them.

(3) The article argues "that the entire civil litigation system is captured by lawyers, judges, and parties ...." Left off of this listed are law professors who perpetuate the one percent system. Who becomes a law professor today--especially at an elite law school--who did not clerk for a federal judge? Confirmation bias pervades the law schools and the work of law professors. If one doubts that, compare the number of law review articles that cite Twombly (3488 in Hein Online today) to the number that cite the ABA Model Access Act (38)!

(4) The problems are severe; tinkering will not be sufficient. Consider what the law professors could and should be studying: how other legal systems manage to do a much better job of civil justice in general and in access to civil justice in particular than the U.S. Today the 2016 edition of the World Justice Project Rule of Law Index was released. The United States ranks 28th. Not only small countries do much better: Germany ranks 2d.

(5) If only one in ten prospective law professors would postpone a clerkship to study a foreign civil procedure system abroad, we would know how we could do things better. And if such professors were to know the U.S. system from the perspective of practice for the one percent, they would not be quiet. They would shout out how to do better (as I have, in my book, Failures of American Civil Justice in International Perspective).

Posted by: James Maxeiner | Oct 20, 2016 3:07:07 PM

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