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Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?


Wednesday, Jul. 18, 2007

Barring intervention by Congress, come December, a newly amended version of the Federal Rules of Civil Procedure will take effect. The Rules have been completely rewritten to make them simpler and clearer. With a minor exception (which was part of a different effort and thus is not relevant here), they make only "stylistic" changes.

As a teacher of civil procedure, I am profoundly grateful to the lawyers, law professors, and judges who spent countless hours rewriting the Rules. The old Rules were so difficult to follow that many students actually purchased a study aid that "translated" them into plain English. The new Rules really are much simpler to understand, and the people responsible have been rightly praised for their hard work.

Nonetheless, the increased clarity that the new Rules provide for civil procedure novices may come at the cost of decreased clarity for experienced practitioners. As I explain below, it may not be possible to re-write the law without changing its meaning, and if it is possible, then there is no clear point to the change. Whether the re-styled Rules lead to greater clarity or greater confusion will ultimately depend on how much common sense the courts use in interpreting them.

The Origins of the Federal Rules of Civil Procedure

For most of American history, federal trial courts followed the same rules of procedure as the state courts in the states in which they sat. When most litigation was local, this made good sense. A lawyer practicing almost exclusively in North Carolina didn't need to learn one set of rules for state court and a second for the rare occasions on which his clients ended up in federal court. He only needed to master the North Carolina rules.

By the Twentieth Century, however, the business and bar of the federal courts had become increasingly specialized and national. Lawyers who specialized in federal litigation wanted the ability to go into a federal courthouse anywhere in the country and use the same set of rules, rather than having to master the procedures of fifty different states. Thus, in the 1930s, Congress opted for inter-state uniformity over intra-state uniformity by enacting the Rules Enabling Act. In addition to favoring national practitioners, Congress hoped that the reforms of the Federal Rules--which did away with many of the technicalities that existed under state rules--would serve as a model for the states, and to a very large extent, they have.

Who makes the Rules under the Rules Enabling Act? The Act delegates to the Supreme Court and the Judicial Conference (a body of federal judges that considers administrative issues for the courts) the power to enact and amend Rules governing procedure, subject only to the possibility that Congress might reject a Rule. However, most of the real work in fashioning Rules and amendments is done by the Rules Advisory Committee, a body consisting of eminent judges, lawyers and law professors. As the people who work with and study federal litigation most closely, they are deemed best positioned to know when and how the Rules need improvement. Like an administrative agency, when the Rules Advisory Committee proposes a new Rule, it takes comments from the public.

The Technical and Not-So-Technical Work of the Rules Advisory Committee

Since the first version of the Federal Rules of Civil Procedure went into effect in 1938, the Rules Advisory Committee has devoted the bulk of its energy to substantive changes to the Rules. Much of that work is technical, concerning such matters as how courts should handle documents stored in electronic form--an issue that did not exist in the 1930s but is crucial now.

Sometimes the Rules of Civil Procedure take on political significance. For example, in the 1970s and 1980s, lawyers representing business interests (and some others) complained that it was too easy for plaintiffs to sue, and thereby subject their clients to costly litigation, even if the suits ultimately proved to lack merit. The response in 1983 was a tightening of the standards governing ethical conduct in the federal courts.

But civil rights (and some other) lawyers objected that the new standard, which was set out in Rule 11, was so stringent that it was filtering out not only meritless but also meritorious claims. In addition, more stringent ethical standards did not slow the litigation juggernaut. On the contrary, they gave rise to "satellite litigation": lawyers now frequently argued over Rule 11 sanctions, as well as the merits of each case.

Consequently, in 1993, Rule 11 was amended again. The amendment again tinkered with the ethical standard, but the principal change concerned sanctions. The amended version of the Rule sought to discourage satellite litigation by permitting a lawyer who filed a pleading, motion or other allegedly defective paper to withdraw it without financial penalty if the other side objected on Rule 11 grounds.

Both the 1983 and 1993 amendments to Rule 11--along with other provisions regarding such matters as pleading and discovery--remain a source of controversy because they implicate an inevitably political tradeoff: Strict rules protect against the filing of frivolous lawsuits but also screen out some meritorious lawsuits, while loose rules have the opposite package of costs and benefits.

The Re-Styling Project and the Supersession Issue

Despite the political stakes, the Rules Advisory Committee has been very successful in remaining a highly professional, largely technocratic body. The re-styling project falls within the core of the Committee's technical expertise. As the Rules Advisory Committee Note to revised Rule 1 states, the "changes are intended to be stylistic only."

Accordingly, the re-styling project has not generated any significant political controversy. That is not to say, however, that it has been completely uncontroversial. One source of confusion concerns the question of the effective date of the re-styled Rules. Under a remarkable provision of the Rules Enabling Act known as the supersession clause, a duly promulgated Rule supersedes (that is, trumps) a conflicting statute previously enacted by Congress. Some critics of the re-styling project argue that as a consequence, old Rules that have already been partly displaced by Acts of Congress will now be resurrected because, with a re-enactment date of December 2007, they will now count as post-dating the statutes.

The Rules Advisory Committee has addressed this contingency in the new version of Rule 86(b), which expressly states that for supersession purposes, the effective date of re-styled Rules shall be the date of the last substantive change to that amendment. However, it is not clear that a federal Rule can change its effective date by fiat. The Supersession Clause of the Rules Enabling Act makes supersession turn on the date that a Rule takes effect, not the date that a Rule says it should be deemed to take effect. And in a conflict between the Rules Enabling Act and the Federal Rules, the Enabling Act prevails, because the supersession clause does not (and logically cannot) apply to itself.

Nonetheless, the Rules Advisory Committee is probably right that the re-styling project will not create a supersession time warp. As an official memorandum explains, prior non-substantive amendments have been treated as not altering the effective date of a Rule for supersession purposes. And more generally, when legislatures recodify the law, the act of recodification is typically treated by courts as having no substantive import.

Why Bother Making Clarifying Changes that Preserve the Old Meaning?

But if the re-styling project will not create supersession problems, it may nonetheless lead to confusion. What happens when circumstances arise in which the meaning of a re-styled Rule appears to conflict with the meaning of the old version of the Rule? As Seton Hall law professor Edward Hartnett documented in an excellent 2006 article in the Notre Dame Law Review, in a restyling project as large as this one, some conflicts are sure to arise.

So now suppose that you are a federal district judge faced with a case in which the parties disagree about the meaning of a Rule. The plaintiff invokes the language of the re-styled Rule, and the defendant invokes the language of the old Rule. Which do you follow?

If we take seriously the Rules Advisory Committee's intention that the changes are to be stylistic only, then it appears that you must construe the old Rule. In doing so, however, can you take any guidance from the new Rule?

Perhaps you will follow the practice of courts in jurisdictions--such as Canada and the European Union--in which the law is promulgated in more than one language, each equally official. When a potential conflict arises, these courts aim for an interpretation that will bring the various linguistic versions of the law into harmony.

Yet that approach rests on the premise that the various versions of the law stand on an equal footing, whereas, if the Rules Advisory Committee is to be believed, only the old version of the Rule is truly authoritative. Accordingly, in cases in which the old Rules are genuinely unclear, the re-styling project does nothing to clarify their meaning. So why bother?

One answer might be that the re-styled Rules are entitled to some weight in the interpretive process. However, that would seem to contradict the claim that the restyling has no substantive effect. And that suggests, in turn, that the re-styling will actually increase the ambiguity of the Rules. Lawyers will continue to argue over what the old version of the Rules means, and now they will also argue over how much, if any, weight to give to the new version of the Rules.

The Solution: Follow Rule 1 and the Spirit of Roscoe Pound

Throughout the re-styling project, the Rules Advisory Committee has insisted that fears of new ambiguity are misguided. Its members and supporters point to the fact that other rules have been re-styled without any substantial difficulties arising. Critics counter that the civil procedure rules are more complex, and govern far more cases. Who's right in this debate will only be determined through experience.

The best way for the courts to prevent the re-styled Rules from generating confusion would be to adhere to the language of Rule 1. In both its current version and the re-styled version, it provides that the Rules as a whole should "be construed and administered to secure the just, speedy, and inexpensive determination of every" case. Translation: Use common sense in interpreting the Rules, and don't get hung up on the intricacies of hyper-technical linguistic nuances.

Come to think of it, that's good advice in other contexts as well. Lately, the Supreme Court has become increasingly rule-centric, at the cost of justice. An extreme example is last month's decision in Bowles v. Russell, which rejected as untimely a notice of appeal from a habeas corpus petitioner who complied with a federal district judge's scheduling order, because the judge had made an error in calculating the time permitted for the notice. This approach comes close to embracing what the great law professor and Harvard Law Dean Roscoe Pound derisively called "the sporting theory of law," which views litigation as a game, losing sight of the important purposes that law serves.

Pound's ideas were highly influential in the creation of the original Federal Rules of Civil Procedure, and their spirit informs the content of the re-styling project. The re-styled Rules aim for, and for the most part achieve, plain, easy-to-understand English. Whether they nonetheless lead to an increase in the very sort of mischief they seek to avoid will now depend on whether the federal courts also permit Pound's spirit to guide their interpretation of the new Rules.

Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at

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