Fractured Procedure: The Civil Justice Reform Act of 1990

Abstract

Federal district courts have viewed the Civil Justice Reform Act of 1990 as a mandate to adopt procedural rules inconsistent with existing law. But in this article, Professor Robel argues that the Act neither compels nor authorizes such local deviations. Citing examples from reforms underway in district courts nationwide, Professor Robel contends that courts' assertions of broad rulemaking authority rest on a misreading of the Act and of the compromise between Congress and the judiciary that led to its passage. Professor Robel cautions that the goal of national uniformity underlying the Federal Rules of Civil Procedure should not be compromised lightly. However, she argues that, while probably unwise, the Civil Justice Reform Act was within Congress' constitutional power to enact. She concludes by urging rulemakers to more carefully consider the costs and benefits of local rules. 5. JUDICIAL CONFERENCE OF THE U.S., CiviL JUSTICE REFoRM Acr RFORT. DEVELoPMENT AND IMPLEMENTATION OF PLANS BY EARLY IMPLEMENTATION DISTRICTS AND PILOT COURTS (1992) [hereinafter JUDICIAL CONFERENCE RaoRT] (discussing alternative dispute resolution, mandatory disclosure, and contingent fees). 6. Don J. DeBenedictis, An Experiment in Reform, A.B.A. J., Aug. 1992, at 16, 16. DeBenedictis further noted that "[t]he differences are great enough that a fat report on the early plans from a special task force of the ABA Litigation Section is largely made up of charts giving side-by-side comparisons of the courts' approaches to assorted topics." Id. Not only the ABA finds interpreting the broad range of courts' responses awkward. A recent Judicial Conference Report to Congress was largely reduced to descriptions and charts tracking each district's developments. JUDICIAL CONFERENCE REPORT, supra note 5. 7. To review the long and difficult path towards uniformity which culminated in the Federal Rules of Civil Procedure, see Stephen B.

Commentary: Focusing on program design issues in future research on court‐connected mediation

“…The Civil Justice Reform Act of 1990 required federal courts to use advisory groups to make recommendations about court program design. For examples of studies of the operation of this program design process, see Kakalik and others (1996), Robel (1993), and Somerlot and Mahoney (1998).…”