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- Title
THE CIVIL RULES COMMITTEE AND AMENDING RULE 56.
- Authors
Brunet, Edward
- Abstract
These are interesting times for the Advisory Committee on Civil Rules. At one level, the strong showing in the increase in those wanting to testify is consistent with Congressional intent to achieve an open and transparent process. Listening to these new inputs provides valuable information essential to decisions to amend, to revise, or to stay put. The number of groups and individuals seeking to provide the Committee input has risen to an all-time high. The queue to provide the Committee input should be seen as a sign of health. At the same time, the recent leaders of the Committee have been energetic and enthusiastic in reaching out to invite participation by experts and other interested parties. Professor Marcus terms this a "pattern of outreach" to the bench and bar. Leadership has also scored high marks in rulemaking innovation by pioneering new types of informational procedures such as mini-conferences and workshops to expand dialog of rules ripe for discussion. Similarly, the Civil Rules Committee now makes great effort to obtain, solicit, and make available empirical information regarding the rules. Increased participation in assessing proposed changes in positive law, however, fails to automatically improve the lawmaking process or to reach either closure or consensus on the issues ripe for consideration. Despite the growth of Committee involvement with outside participants, one sometimes hears complaints that the Committee is frozen or just plain unwilling or unable to make major changes. To be sure, the Committee has an option to stand pat and take no action. This is an historic stance that any group of legislators possesses. The Article will set forth a theory to justify so-called stay put or nonaction options. Although informational input to the Committee has spiked, much of it appears repetitive and unproductive. Legislative decision makers each have an optimal point of their ability to assess new input. Continuing to encourage new input after that point of optimality is probably questionable policy. This Paper will look closely at the Civil Rules Committee's efforts to revise Rule 56, the summary judgment rule. The very helpful papers of Ed Cooper and Richard Marcus also assess the Civil Rules Committee's work revising Rule 56. Professors Cooper and Marcus serve as the Reporter and Associate Reporter of the Civil Rules Committee and have inside positions in the rulemaking process. My Paper necessarily describes the work of the Civil Rules Committee as that of a legislative or rulemaking model. The making or revising of a Federal Rule of Civil Procedure amounts to an act of legislation. In the Rules Enabling Act, Congress delegated the responsibility of procedural rulemaking to the Supreme Court, which sends this task to the Judicial Conference, which, in turn, appears to have passed the authority to recommend rule revisions to the Civil Rules Committee. Such delegations, including the subdelegations seen here, are common to administrative law and the rulemaking process. My own analysis heavily borrows from the Administrative Law model. While the use of the rulemaking model governs, the expertise of the Civil Rules Committee members contributes to the invaluable respect and trust that allows new procedures to function effectively. Committee decisions are those of experts in their fields. I include the Reporter and Co-Reporter who are clearly insiders having great influence and apparent control of the all-important drafting process. Expertise must be patent in order to maximize trust and respect. Separation of powers questions can arise when we have a mixed-model body such as the Civil Rules Committee. The Committee allows Article III judges to craft legislative rules authorized by the Article I Congress. The analogy of an expert administrative agency is clearly appropriate in this context. Congress has delegated the task of rule creation in civil cases to an expert group of federal judges. This allocation of rule creation to an expert group of adversary model decision makers is what it is--the presence of expertise in one model does not necessarily lead allencompassing expertise in other models of governance. I take an optimistic view toward the recent summary judgment work of the Committee. It would be incorrect to assert that the 2008 and 2009 revisions to Rule 56 made no changes. The amended Rule 56 (1) mandated a reasoned and written decision, (2) confirmed that all summary judgment evidence must be admissible in evidence, (3) clarified that the court need not search the record to find summary judgment evidence but can rely on record evidence not cited by the parties, (4) stated expressly that the district judge has the power to grant sua sponte summary judgment, (5) clarified that a judge need only consider pinpointed evidence, and (6) enshrined partial summary judgment in the text of Rule 56. These helpful changes were supported by case law but not the prior text of the summary judgment rule. Now part of the Rule, they create a much more organized and transparent Rule 56 procedure. The Committee's refusal to legislate Trilogy caselaw language into the Rule's text seems savvy. Leaving such subjects as standards to the common law development regarding summary judgment is sensible and demonstrates a measure of confidence in the ability to improve summary judgment in the trenches of civil litigation. Common law development adds a degree of creativity and nuance that could help improve rulemaking. Subjects such as burden shifting are difficult to transform into clear procedural rules. Clarifying evidentiary norms is helpful to the summary judgment process and advances the need to achieve accurate decisions. The Committee's restoration of the word "shall" demonstrates the Civil Rules Committee's work at its best and worst, but also demonstrates the flexibility of its members. Somehow the Committee came to accept the 2007 thesis of the Style Project that eliminated the word "shall" from numerous rules and replaced it with the word "should." This is the single segment of the recent set of attempted revisions that defies rational explanation. "Should" clearly adds a layer of discretion to a summary judgment norm that already has more discretion than required. The presence of the trial judge's ability to deny summary judgment if only one issue of fact exists guarantees that Rule 56 is discretionary. The Standing Committee, the group that reviews recommendations from the Civil Advisory Committee, showed good judgment when it restored the "shall grant summary judgment" phrase and deleted the words "should grant summary judgment." Professor Marcus observes correctly that some of the testimony of interested parties overstated the problems of some proposed amendments. My Essay briefly describes the Committee's rejection of the point-counterpoint amendment. The point-counterpoint concept had been used successfully in many local rules. There was substantial opposition to the point- counterpoint amendment. My own 2009 testimony took the practical position that good lawyers would essentially follow something approximating point-counterpoint, even without being forced to, by marshaling evidence in the record on the major issues presented in their cases. If true, the point-counterpoint methodology had already been part of the summary judgment process and was hardly revolutionary.
- Subjects
UNITED States; UNITED States. Supreme Court. Federal rules of civil procedure; UNITED States. Advisory Committee on Civil Rules; POSITIVE law; SUMMARY judgments; COOPER, Ed; MARCUS, Richard; ADMINISTRATIVE procedure; JUDICIAL Conference of the United States
- Publication
Lewis & Clark Law Review, 2014, Vol 18, Issue 3, p627
- ISSN
1557-6582
- Publication type
Essay