Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process

Abstract

The federal rules of civil procedure were intended by their drafters to be model for states to adopt, thereby promoting national procedural uniformity. From 1949 through 1975, federal procedure exerted a powerful influence over state civil procedure as the number of “replica” states grew from four to twenty-three. The golden age of the federal rules is over. The initiative in procedural reform has passed to the states, which have been increasingly assertive in adopting rules that deviate from the federal model, particularly in the area of discovery.

This article proposes that the next great wave of procedural reform in American civil justice emanate from the states themselves in the form of a national code of state civil procedure. The willingness of states to chart their own paths toward civil justice reform presents both a problem and an opportunity. The problem – especially for parties who litigate on a national scale – is a crazy quilt of procedures that promote forum shopping, which can unfairly affect substantive outcomes. The ferment of experimentation among state jurisdictions, however, also presents an opportunity – the chance to produce a better national civil procedure than the Federal Rules now afford and to create a collaborative rule-making process, grounded in a system of controlled rules experimentation which may serve as a model for federal rule-makers.

A central thesis of this Article is that national procedural uniformity among state courts remains a desirable, viable, and achievable goal despite the failure of the top-down federal-rules-model approach to achieve that goal. The momentum for developing uniform state procedural rules must, however, originate with the states themselves. The states have already manifested the energy required to fuel this momentum through their willingness to experiment – albeit haphazardly and largely uninformed by empirical research – with a wide variety of discovery reforms. The Article urges that this energy be channeled, nurtured, and sustained through an institutionalized national mechanism that promotes cooperation and collaboration among state judicial systems in experimenting with procedural change and in formulating uniform rules of state civil procedure informed by the resulting empirical data. Because the states are increasingly unwilling to follow the federal lead, they need to fashion a vigorous rule-making process that supports – on a national level – their independent rule-making role, a process superior to that of the Federal Rules. By pooling their rule-making resources, state judicial systems can assume an authentic and sustainable leadership role in civil procedure reform responsive to their needs.