Reflections on the ‘Chimera’ of a Uniform Code of State Civil Procedure: The Virtue of Vision in Procedural Reform
43 Pages Posted: 10 Jul 2011
Date Written: 2008
Abstract
In 2005, I made the unorthodox assertion that the initiative in procedural reform has passed from federal rulemakers to the states, which have been increasingly assertive in experimenting with rules that deviate from the federal model. I proposed 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.” This national code would be the product of a new rulemaking process in which the states collaborate through a national rulemaking body to produce “a better national civil procedure than the Federal Rules now afford,” informed by empirical data developed through a system of coordinated and controlled rules experimentation in state courts.
I conceded then that the “goal of a national code of state procedure may seem utopian.” And, indeed, this vision has, understandably, been met with considerable skepticism by a few federal rulemaking insiders, most notably Professor Richard Marcus, a Special Reporter to the Civil Rules Advisory Committee, who adjudged it to be “something of a chimera.” In evaluating the plausibility of my proposal, Professor Marcus brings to bear over a decade of real-world experience “labor[ing] in the vineyard of federal procedure reform as Special Reporter to the Advisory Committee on Civil Rules.” His procedural world view is a pragmatic one, that of a self-described academic scrivener to the Advisory Committee. Although a prominent academic himself, he professes to be skeptical of the practical contribution of scholarly schemes to advance procedural reform. His vigorous critique has spurred me to reflect more thoughtfully on the practical value of vision in procedural reform during a time of intense controversy over the current state of American procedure. This Article explores the value of vision and procedural theory, as well as the role of the legal academy, in constructing a new paradigm of procedure better adapted to current pressures that challenge the American procedural system.
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