The Agenda-Setter for Complex Litigation

Abstract

I am honored to be allowed to contribute to this collection in recognition of Chief Judge Edward Becker, who has long been at the forefront in developing sensible ways for addressing a variety of issues that lie at the heart of handling modern complex litigation. As I reflected on Judge Becker's contributions to this area on which I have focused my professional career, it struck me that the right theme for this essay would be the judge's role as an agenda-setter. For me, he first set that agenda nearly twenty years ago when I was working on my first civil procedure article, and he has kept doing so ever since.

In political circles, it is widely appreciated that setting the agenda is a way to control the outcome of the game. Stalin, for instance, was able to achieve power in the early Soviet Union in significant measure because as General Secretary he controlled the agenda for the Politburo. But judges do not get to set their own agendas; it is one of the hallmarks of Anglo-American judges that they take what comes to them by the luck of the draw. Others ‒ mainly the litigants ‒ set the agenda for judges. So judges cannot control the game in the same way.

Despite these institutional constraints, Judge Becker has set the complex litigation agenda for decades. In part, it is because he set the agenda in other capacities than as a sitting judge. For example, he was a catalyst behind the creation of the Advisory Committee on Evidence Rules. In part, it is because the Judiciary has called on him to serve as an agenda-setter as a member of its Long Range Planning Committee. In part, it is because his incredible energy allows him to reach out to the practicing bar and academic communities along with carrying out his many judicial duties.