Litigation Reform: An Institutional Approach (with Stephen Burbank). 2014
University of Pennsylvania Law Review 162
The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench private enforcement, particularly in the last decade. The Federal Rules of Civil Procedure became for a brief time the lawmaking territory in which a newly assertive institutional judiciary sought to forge instruments of retrenchment, but the ensuing controversies quickly animated interest groups and members of Congress who were protective of the procedural status quo to press successfully for changes in the Enabling Act process that limited rulemakers’ capacity to change the Federal Rules. Rulemaking is not, however, the only way that the judiciary can influence private enforcement. Federal Rules afford ample room for interpretation, and they can be effectively amended by the Supreme Court outside the Enabling Act process. Empirical analysis of the Court’s Federal Rules decisions confirms that, in this domain as well, the campaign to retrench private enforcement has had its greatest success in the courts. Indeed, it may be that the success experienced in the Supreme Court affected both the content and the zeal of the legislative campaign for civil litigation reform. Thus, although the issue of litigation reform in general, and procedure as a tool of litigation reform in particular, has been declining in Congress since the mid-1990s, it is at its highest level ever on the Court.