Evidence-Based Federal Civil Rulemaking: A New Contemporaneous Case Coding Rule

Abstract

Consistent with democratic ideals, evidence-based policymaking (EBP) seeks to elevate facts over politics. This article proposes a new EBP Federal Rule of Civil Procedure requiring the contemporaneous coding of cases filed on the federal courts’ online case management/electronic case filing system (CM/ECF) for key outcome variables. The next generation CM/ECF is currently in the design phase. Only a new Federal Rule can provide the uniform implementation necessary to create a comprehensive, reliable, and inexpensive descriptive dataset for evidence-based federal civil rulemaking.

Federal civil rulemaking possesses institutional and technological characteristics ideal for EBP. Institutionally, federal civil rulemaking utilizes a unique expert committee structure insulated from, yet accountable to, popular democracy. The present Advisory Committee values empirical research and takes its time to evaluate proposed Rules amendments. Furthermore, it has an independent, professional researcher, the Federal Judicial Center (FJC), on call. The increasing popularity of empiricism in the Academy also facilitates additional research.

Technically, CM/ECF makes accurate coding more likely. When party counsel file a document in CM/ECF, the person with the most firsthand knowledge of the filing codes it under the threat of Rule 11 sanctions and under the scrutiny of opposing counsel and the court. This descriptive dataset must be indisputably objective so that all sides in a policy debate will accept its accuracy. Even if opposing sides disagree over its interpretation, the dataset can serve its public purpose by providing a shared baseline upon which to ground policy debates.

Keywords: Evidence-Based Federal Civil Rulemaking, Evidence-Based Policy, Federal Courts, eGovernment, eFiling, Electronic Filing, Federal Rules of Civil Procedure