25 Rev. Litig. 79

The Other Rules of Civil Procedure

Laurens Walker

In this Article, Laurens Walker discusses the common law procedural rules that interact with the 1938 Federal Rules of Civil Procedure. Mr. Walker argues that these “Other Rules” interact with the 1938 rules in such a way as to make the procedure scheme conservative rather than progressive, citing several 1938 rules and how their progressive effect is negated by common law Other Rules. Mr. Walker also gives a brief history of the passage of the 1938 rules and the historical circumstances surrounding that passage. He finally concludes by arguing that progressive reform of civil procedure reform was a myth and therefore should not impede attempts to presently reform the system to actually make it more progressive.

 

   I. Introduction The Federal Rules of Civil Procedure have attracted much general analysis and comment since their adoption in 1938. n1 However, the rich context of common law procedural rules that function in conjunction with the 1938 Rules n2 to determine the actual function of the federal district courts has not yet received any systematic analysis and comment. Among these background rules are, for example, heightened pleading requirements, the burdens of production and persuasion, and the doctrine of res judicata. These Other Federal Rules of Civil Procedure Rules are the subject of this article. My thesis is straightforward: The Other Rules interact with the 1938 Rules in such a way as to counter the apparent progressive n3 character of the 1938 Rules and produce a functioning system which is not progressive in reality but conservative. n4    In Part II, I begin to defend my thesis by presenting a series of core illustrations comparing the content of the 1938 Rules with the content of The Other Rules. I begin with Rule 8, probably the most significant 1938 Rule, and describe Rule 8's broad invitation to access the district court. The key provision is Rule 8(a)(2), n5 which asks for only a "short and plain statement of the claim," illustrated by a number of official forms, n6 many only one sentence in length. In practice, federal courts almost never receive complaints with only one sentence (or even two or three sentences), suggesting, I argue, that judicial hostility to minimal pleading standards has been powerfully influential and has severely limited access. Thus, the effect of Rule 8 is countered by Other Rules governing access to federal courts.    Next, I discuss the proof testing process as a second illustration. Rule 50 is the central feature of the proof testing process and provides for judgment against a party if that "party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party with respect to that issue." n7 This controlling language and reference to a "reasonable jury" reveals nothing of the burden of production concept which actually determines outcomes under Rule 50 and which in practice almost always favors the status quo. Rule 56, n8 the Summary Judgment rule, employs the same production burden standard with often decisive results, but Rule 56 makes no mention of the concept. Rule 38, Jury Trial of Right, provides that the right to jury trial "shall be preserved to the parties inviolate," n9 but does not describe the burden of persuasion which governs the jury's function and determines the result in close cases, usually in favor of defendants.    Next, I offer the illustration of preclusion. The 1938 Rules speak of bringing litigation to an end only in vague terms. Rule 41, Dismissal of Action, creates a presumption for "adjudication on the merits," n10 an attractive concept to all. Yet serious common law preclusion effects flow from involuntary dismissal under Rule 41(b): claim preclusion and issue preclusion are presumed and can validate results that are obviously wrong, most often punishing mistakes by plaintiffs. Finally, I offer the possible counter illustration of discovery. Some might argue that Rules 26 37 offer proof of the progressive character of the 1938 Rules, but, I argue, this tendency is modest, at best. The discovery rules are available only after access to federal court, and any plaintiff advantage is limited by high cost.    In Part III, as background for further defense of my thesis, I briefly review the history of the 1938 Rules. I begin with then progressive Roscoe Pound's famous 1906 speech to the American Bar Association (ABA) in which Pound argued that a crisis existed in American courts because of archaic procedures. I relate the conservative audience's consternation with his indictment and, later, the ABA's adoption of reform in service of conservative goals. I also recall the ultimate and surprising success of that effort when, in 1934, the Roosevelt administration broke with progressive opposition to the ABA proposal and supported passage of the Rules Enabling Act, which authorized the Supreme Court to prescribe civil rules for federal courts, and their eventual adoption in 1938. Finally, I describe the initial praise for the 1938 Rules as well as more recent expressions of disappointment by prominent commentators.    In Part IV, as additional background for defense of my thesis, I briefly review the broad history of the New Deal which was the primary historical context for the 1938 Rules. I begin with a description of the social crisis of the early 1930s, then describe the Roosevelt administration's reaction to that crisis from 1933 to 1940. I then summarize the early and enthusiastic evaluation of the New Deal record as well as recent and persistent criticism that the rhetoric of the New Deal leaders was not, in fact, realized in action. In Part V, I complete the defense of my thesis by explaining how and why the Other Rules were left unchanged. I draw on both the history of the 1938 Rules and the New Deal to explain that the chain of events which led to adoption of the 1938 Rules mirrored a common pattern of New Deal practice of adopting and enacting earlier conservative proposals. The reason for this practice can be attributed to Roosevelt's elite background and assumptions, suggesting that the failure to change the Other Rules reflected the elite background of the lawyers who drafted and reviewed the Rules.    Finally in Part VI, I state and apply my conclusion that, indeed, the combined 1938 and Other Rules were, in the beginning and remain today, not progressive but conservative in effect. My ultimate objective is to encourage classroom and public debate about the relation between procedure and society.    II. The 1938 Rules and the Other Rules Compared I now begin to defend my thesis that the actual function of the 1938 Rules is severely modified by the effect of the Other Rules. My argument takes the form of three illustrations which compare the 1938 Rules with the Other Rules as both functioning at three key points in the trial process. I also discuss discovery as one possible counter illustration. I propose to show that, on balance, the 1938 Rules provide little more than a progressive gloss on common law procedure which is burdensome to plaintiffs and dangerously formalistic.    A. Access to Court For the plaintiff, access is essential to success. Without access, no judicial remedy is possible. On the other hand, defendants typically find themselves ordered to court and unhappy to participate. In this simple way, access is almost always a concern only of plaintiffs. n11 A progressive procedure would surely provide generous access.    1. The 1938 Rules The 1938 Rules treat the access issue chiefly in Rule 8. n12 Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," n13 a requirement strikingly illustrated by Forms 3 through 9, n14 the relevant parts of which are only one sentence in length. For example, Form 9 provides: "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a vehicle against plaintiff who was then crossing said highway." n15 The words "short and plain," coupled with the series of single sentence examples suggests an open door for all "entitled to relief." Though Rule 8(a)(2) makes no explicit promise, surely implicit in the rule is a commitment that the federal courts will inquire about the problems of most plaintiffs.    2. The Other Rules There is, however, much more to the story of access. In fact, very little progressive change was actually realized. Rule 8(a)(2) has not fostered widely available federal judicial inquiry. n16 Instead, heightened pleading requirements which long predated the 1938 Rules effectively countered change. In a 1921 article, Walter Wheeler Cook quoted the New York Code's requirement that a complaint contain a "statement of the facts." Cook observed that:     These provisions at first sight seem simple, and probably the men who first drew them so believed. That the simplicity is not real, however, becomes clear when one reads the hundreds, not to say thousands, of decisions which have passed upon the question whether in a given case the pleader has "stated the facts" in an acceptable manner. n17     The New York Code's requirement of "statement of facts" was the direct descendent of the famous 1848 Field Code n18 and a national model for reform. The literal language of Rule 8 separated the 1938 Rules from the older Code Pleading System by avoiding any use of the term "facts." But, the heightened pleading requirements which had plagued the prior reform continued with only minor modification. Rule 8's near elimination of any meaningful requirement that plaintiffs initially apprise the court of a basis for relief provoked judicial hostility from the very beginning. n19 The forms were the focal point and their sufficiency was speedily rejected. n20 In 1946, Rule 84 was amended to provide that the forms were sufficient. n21 In 1952, the Ninth Circuit Judicial Conference adopted a resolution to amend Rule 8(a)(2) to include a requirement that "the statement shall contain the facts constituting a cause of action." n22 The proposal was rejected by the rulemakers, n23 but judicial hostility continued, often expressed in the identification of whole categories of cases requiring heightened pleading. n24 Although defenders of the Rule had victories, n25 one commentator recently labeled simplified federal pleading a "myth." Christopher Fairman wrote, "from antitrust to environmental litigation, conspiracy to copyright, substance specific areas of law are riddled with requirements of particularized fact based pleading ... . Sometimes subtle, other times overt, federal courts in every circuit impose non Rule based heightened pleading in direct contravention of notice pleading doctrine." n26        B. Testing the Proof of the Parties The Anglo American legal tradition requires parties to provide evidence in support of claims and defenses, conditioning the ultimate outcome of a case on the content of this proof. Quality control is enforced by a series of tests which litigants must meet or suffer loss. While both plaintiffs and defendants face these tests, plaintiffs typically confront many more tests than defendants.    1. The 1938 Rules The 1938 Rules, which function at the key points of proof testing, say little about the process. The responsibilities and attendant risks are only hinted at in the exceedingly spare language which characterizes Rule 38, Rule 50, and Rule 56. I discuss these rules below in descending order of their potential importance.    a. Motion for Directed Verdict The original version of Rule 50, then known as "Motion for a Directed Verdict," and now called, "Judgment as a Matter of Law In Jury Trials," was elliptical to the point of omitting any mention of proof testing. n27 The text of the original version was devoted to peripheral issues, such as the effect of making the motion at a particular point in a trial, the effect of making the motion on the right to a jury, and the formal content of a motion. The current version of the Rule does state at least that a court "may grant a motion for judgment as a matter of law" under the rule. n28    b. Summary Judgment Rule 56 was originally more informative than Rule 50. Rule 56 recognizes that a motion under the rule might determine the outcome of the case, but there is nothing else of apparent importance. Most of Rule 56 is, like Rule 50, devoted to peripheral matters such as the effect of a partial grant of summary judgment, the format of evidence submitted under the rule, and the problem of proof not fully developed at the time of the motion. n29    c. Jury Trial Rule 38, "Jury Trial of Right," provides, "the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." n30 The rhetoric is impressive, but the Rule is redundant because the Seventh Amendment is merely affirmed. n31 There is little else in Rule 38. The remainder deals with the requirement that litigants must request a jury trial and the exclusion of "admiralty and maritime claims" from the scope of the Rule. n32 Repeating the pattern of Rules 50 and 56, there is no mention of any "testing" and attendant risks.    2. The Other Rules The other Federal Rules do establish specific proof testing and chiefly determine actual practice. These rules incorporate risks which are systematically inimical to plaintiffs. Today they are often referred to as the "burden of production" and the "burden of persuasion." At times, both responsibilities have been called "the burden of proof," a practice first identified and discussed in 1890 by James B. Thayer, who established the basic conceptual framework used today. n33 Thayer wrote that in legal discussion the term burden of proof "is used in two ways: (1.) To indicate the duty of bringing forward argument or evidence in support of a proposition, whether at the beginning or later. (2.) To mark that of establishing a proposition as against all counter argument or evidence." n34    a. Burden of Production The burden of production determines which cases will terminate before verdict. n35 Risk of loss is assigned by substantive law and typically falls to the party seeking to upset the status quo, by definition, usually plaintiffs. n36 Judgment as a matter of law typically follows from a failure to survive a production burden test. Thus, the apparently neutral and incomplete language of Rule 50 actually functions with the production burden to systematically protect the status quo.    Though not mentioned in Rule 56, the burden of production also largely controls summary judgment practice. n37 Participation in the summary judgment process is enforced by application of the burden of production test. A failure to participate and provide the court with a forecast of quality proof will usually result in an adverse judgment. n38 Thus, the production burden's systematic bias against plaintiffs extends to Rule 56.    b. Burden of Persuasion Finally, the common law burden of persuasion dominates Rule 38 practice. Trial judges instruct the jurors to resolve close cases against the party assigned the persuasion burden, usually the same party assigned the production burden, the plaintiff. One standard instruction provides:     [Plaintiffs have] the burden in a civil action, such as this, to prove every essential element of [their] claim by a preponderance of the evidence. If [plaintiffs] should fail to establish any essential element of [their] claim by a preponderance of the evidence, you should find for [defendants] as to that claim ... . n39    C. Closing the Dispute My third illustration involves res judicata, the doctrine which embodies a common law preference for bringing an end to litigation. This preference can have harsh results, which block argument that Anglo American civil courts function to determine truth, and instead suggests practical aims.    1. The 1938 Rules The res judicata preference is invoked by Rule 41, but not discussed. Rule 41(b), "Involuntary Dismissal," provides that most dismissals operate "as an adjudication upon the merits." n40 While the casual reader might applaud the rhetoric of Rule 41(b), the phrase invokes common law rules of preclusion, which chiefly obstruct future action by plaintiffs. n41    2. The Other Rules The doctrine of res judicata has been widely accepted in common law countries for several centuries. n42 Alan Vestal estimated that the doctrine has been followed by judges for some 350 years. n43 Today, in the United States, the conventional terms for res judicata are "claim preclusion" and "issue preclusion." Both claim preclusion and issue preclusion can result from the granted Rule 41(b) motion. n44 Claim preclusion broadly prevents related subsequent court action. n45 Issue preclusion, more narrowly, prevents relitigation of issues previously decided. n46 The inaccuracy of the dismissal cannot be a basis for a second claim. n47 Brainerd Currie wrote that "the first lesson one must learn on the subject of res judicata is that judicial findings must not be confused with absolute truth." n48    D. Discovery The strongest counter illustration to my thesis might be the detailed provision for depositions and discovery established by 1938 Rules 26 37. These rules establish, in multiple page provisions, techniques parties may use to collect relevant information from other parties, and expand on a formerly slight equity practice providing a practice unknown at common law. There is a common opinion that discovery in actual function generally favors plaintiffs. The discovery rules might show that the Advisory Committee sometimes writes functionally progressive rules, which might counteract the generally conservative effect of the Other Rules illustrated above. As to this argument, two observations might be helpful. First, the discovery rules are available to plaintiffs only after a civil action is properly commenced. n49 Thus, the problem of access discussed earlier n50 stands between plaintiffs and discovery in federal court. Also, the individual plaintiff or small business plaintiff may be faced with overwhelming discovery costs such that any advantage from Rules 26 37 will be blocked by the high cost of employing the process. Thus, the contrary effect of discovery rules is likely moderate and episodic.        III. The 1938 Rules As background for the further defense of my thesis, I begin by briefly recalling the history of the 1938 Rules. The story began with a call for progressive reform. This proposal was taken over, modified, and then supported by conservatives and finally adopted and enacted by New Dealers, despite then strong progressive opposition.    A. Crisis in 1906 The 1938 Rules project began on August 29, 1906 in St. Paul, Minnesota at the twenty ninth annual meeting of the American Bar Association. n51 The specific starting point was a speech, "The Causes of Popular Dissatisfaction with the Administration of Justice," n52 delivered by Roscoe Pound, the young, progressive dean of the University of Nebraska Law School. n53 As his title suggests, Pound's personal mission was to report "real and serious dissatisfaction with courts and lack of respect for law which exists in the United States today." n54 Pound limited himself to civil justice and proposed to determine the causes of this loss of popular support for courts. n55 Although Pound recognized and discussed several causes in all, his analysis of "causes lying in our American judicial organization and procedure" n56 marked the start of the 1938 Rules. Pound called problems of organization and procedure "the most efficient causes of dissatisfaction with the present administration of justice in America." n57 He labeled the American court system "archaic" with procedure resulting in "uncertainty, delay, and expense." n58 His criticism was general and not focused on federal courts. n59 Pound's oration provoked a stormy debate among conservative ABA delegates. n60 They first objected to a proposal to print and distribute Pound's speech and then objected to a proposal to refer the paper to a standing committee for further study. n61 Ultimately, the immediate ABA response was to refer only the subject matter of the Pound speech for study.    B. Response to the Crisis Pound's address was, perhaps, the most famous call for American law reform of the twentieth century. But results were slow in coming. Despite the 1906 debate, in 1907 the ABA appointed a special committee to study Pound's ideas, with Pound himself as a member, and by 1910 this committee asked for and received authority to develop a federal practice act. n62 At the time, common law actions in federal courts followed local state procedure, creating obvious problems for lawyers engaged in a national practice. By 1911, an ABA goal of uniform federal procedure began to emerge, and in 1912 the ABA established a Committee on Uniform Judicial Procedure. n63 At this time, and well into the New Deal period, the federal courts and, notably, the Supreme Court, were generally conservative in their judicial outlook and friendly to commercial interests, a natural concern for the ABA. n64 Ten years later the ABA included the unification of law and equity as an additional aspect of the plan. n65 This addition was particularly significant because it indicated the likely character of rules which might result from the ABA efforts. At the time, equitable actions in federal courts followed federal equity rules, and these rules had been put to favorable use by conservative interests n66 and were doubtless familiar to ABA members. Obviously, this suggested that any uniform unified rules would likely mirror federal equity rules. For the next decade, the Committee on Uniform Judicial Procedure urged Congress to pass legislation allowing the Supreme Court to prescribe a uniform federal procedure featuring the unification of law and equity. n67 The Committee proposed several different bills to Congress, but none were adopted, largely because Senator Thomas J. Walsh, a progressive from Montana, blocked the ABA's proposals. n68 Walsh was suspicious of the proposed role for the conservative Supreme Court in the rule making process. n69 Walsh also argued that lawyers who practiced in only one state a vast majority might be confused by uniform federal procedure different from local state law. n70 Plainly defeated by Walsh, in 1933 the ABA Committee on Uniform Judicial Procedure disbanded. n71    Less than a year after the ABA accepted failure of its effort to promote a uniform federal procedure, Congress overwhelmingly approved legislation which directly led to the 1938 Rules. Senator Walsh was President Franklin D. Roosevelt's choice in 1933 to be Attorney General, but Walsh died before he could take office and Roosevelt instead chose Homer Cummings, a liberal Connecticut lawyer. n72 On March 14, 1934, Cummings announced to the New York County Lawyers' Association that he had recently asked Congressional leaders to authorize the Supreme Court to prescribe a uniform federal procedure. n73 Perhaps most importantly he said, "I am authorized to say here tonight that this proposed reform also carries the endorsement of President Franklin D. Roosevelt." n74 Within three months the legislation Cummings had requested was enacted by Congress and signed by the President. n75 The Rules Enabling Act of 1934 was virtually identical to the last proposal supported by the ABA. n76    At first, the Supreme Court, led by Chief Justice Charles Evan Hughes, n77 moved slowly and did little more than ask the Justice Department for assistance in developing a uniform federal procedure. But, after a year of little progress, the Supreme Court changed course and appointed an Advisory Committee to do the work. n78 The chairman of the committee was William D. Mitchell who had been Attorney General in the Hoover administration and Solicitor General during the Coolidge presidency. The reporter was Dean Charles Clark of Yale Law School. Clark had followed a family tradition into Republican politics and President Hoover had offered to nominate him to the Court of Appeals for the District of Columbia. n79 In addition to Mitchell, there were eight other practicing lawyers, all engaged in business oriented practice, and none likely to represent the interests of individuals or their lawyers. n80 In addition to Clark, the Committee included four other academics, all senior faculty members at prominent law schools. n81 On balance, it seems clear that a conservative Supreme Court chose a conservative Advisory Committee. n82    The Committee held its first meeting June 30, 1935 n83 and submitted its final report to the Supreme Court on April 30, 1937. n84 The Committee report was adopted by the Supreme Court n85 with only minor changes, and the Court forwarded the proposed rules to Attorney General Cummings on December 20, 1937, and he forwarded them to Congress January 3, 1938. n86 An ABA observer of this process wrote, "the Advisory Committee and the Court by no means chose the most advanced or radical rules which were offered to them." n87    Congressional approval of the 1938 Rules (by inaction) was clearly not a foregone conclusion, at least to Charles Clark, who made his case for the new Rules in an article published in April 1938. n88 Clark, in his first paragraph, identified the danger that "a conservative bench and bar might pay too much attention to rules" of procedure unless those rules are "continually restricted to their proper and subordinate role." n89 Continuing in that same paragraph, Clark proposed the Federal Rules of Civil Procedure as "a significant reform, involving the due subordination of civil procedure to the ends of substantive justice." n90    A few pages later, Dean Clark identified his cause with broad efforts to change the social order: "The trend of procedural rules towards undue rigidity is often at variance with a developing substantive law. New political and economic forces are likely to force new relationships between persons, and new governmental attempts to control such relationships, while the process of enforcement becomes ever slower and more cumbersome." n91 Clark continued on a hopeful note, recognizing the same demands "for procedural reform which the political movements of the day show for social and economic reform." n92    Ultimately, Congress did not act to postpone or alter the proposed civil rules, and they became effective on September 16, 1938. n93 The new rules were a slim body of procedural law, which today seem little more than a gloss on practice which existed before their effective date. To be sure, these rules were uniform and law and equity procedure were unified, but these two changes had little impact on the core conduct of trials and their results and chiefly affected the research work of lawyers. n94        C. Early Evaluation Praise for the 1938 Rules began even before their effective date. One early commentator wrote, "History has never seen a greater cooperative effort of the bench and bar of a nation for the improvement of judicial procedure than that which we have witnessed in this country during the past three years." n95 Another commentator, writing two years after the effective date of the 1938 Rules, was even more effusive, stating "September 16, 1938 will long remain an outstanding date in the chronicles of Federal Jurisprudence. The far reaching change in Federal civil procedure which was inaugurated in that day ... completely revolutionized the mode of handling litigation in the Federal Courts. " n96 After mentioning various aspects of the new rules, he concluded, "The objectives of the new procedure were attained to an extent far beyond the expectations and even the hopes of its most ardent advocates and champions." n97 Several years later a third commentator exceeded both of these earlier contributors, calling the new rules "one of the greatest contributions to the free and unhampered administration of law and justice ever struck off by any group of men since the dawn of civilized law." n98 Ten years after adoption of the rules, Charles Clark wrote that "the universal chorus of approval is quite phenomenal." n99    D. New Critics For the next twenty five years and more, the 1938 Rules continued to enjoy near iconic status, but some commentators in recent years have expressed significant disappointment. n100 Perhaps most striking was an essay by John Leubsdorf, The Myth of Civil Procedure Reform. n101 Leubsdorf wrote, "Most lawyers in the United States emerge from law school in the grip of a myth." n102 That myth, according to Leubsdorf, begins with an account of the horrors of common law pleading and moves on to recognize Jeremy Bentham as the torch bearer of procedural reform. Next, the story relates how "over the opposition of greedy conservative lawyers" first the English and then Americans achieved reform, "which the Federal Rules of Civil Procedure of 1938 consummated." n103 The problem is current, according to Leubsdorf: "Even today, many first year law students find much of this story in their books or hear it in their civil procedure classes. Most teachers realize that it is an oversimplification, but it furnishes too useful an organizing perspective to discard." n104 The result, according to Leubsdorf, is that "the myth of past reform impedes present reform. If we believe that we have already emerged from darkness into light, we are less likely to seek further illumination." n105 Leubsdorf candidly concluded his introduction: "How false is the myth? I do not know, and doubt that anyone else does either." n106    Judith Resnik, in her article Failing Faith: Adjudicatory Procedure in Decline, n107 also expressed disappointment with the 1938 Rules. First, she noted that "many in the legal profession now criticize aspects of the rules and demand revision." n108 Resnik wrote that "one need neither endorse all of these criticisms nor accept the empirical validity of the descriptions upon which the criticisms are based to join in a call for review of the Federal Rules." n109 She complained that "intended as an ample umbrella for federal litigation the Rules are silent about many issues of great saliency today." n110 She also expressed concern about "the changing rhetoric about the Rules ... . We have moved from arguments about the need to foster judicial decisions "on the merits' by simplifying procedure to conversation about the desirability of limiting the use of courts in general and of the federal courts in particular." n111 Unlike Leubsdorf, Resnik offered an explanation for her disappointment. She blamed "failing faith" in the very process of adjudication. n112    Stephen Subrin, in his article How Equity Conquered Common Law: The Federal Rules in Historical Perspective, n113 also expressed disappointment. Like Resnik, Subrin first noted that "the Federal Rules and adjudication of civil disputes are under attack." n114 He then expressed concern that "examination of the evolution of the Federal Rules reveals that rules of equity prevailed over common law," and suggested that "this conquest represents a major contributing factor to many of the most pressing problems in contemporary civil procedure." n115 At a later point Subrin continued:     Aspects of common law procedure and thought, not equity, may be required to help deliver or vindicate rights, now that equity has opened a new rights frontier. Focusing on the historical currents that resulted in the Federal Rules will illustrate what an enormous distance was traveled, how one sided the procedural choices became, and the problems implicit in those choices. n116 For Subrin, "the cure for our uncontrolled system does not require the elimination of equity. It does require that we revisit our common law heritage." n117    IV. The New Deal As additional background for defense of my thesis, I now turn briefly to the broad history of the New Deal, which encompassed the most important events of the 1938 Rules project. n118 The story is about the United States' most serious domestic crisis and the efforts of President Franklin D. Roosevelt and his fellow New Dealers to save the nation.    A. The Situation in 1932 American society faced a dreadful crisis in 1932. Food was often in short supply, and there was evidence of starvation as well as suicide in the face of starvation. n119 Shelter was foreclosed or unavailable, and more than a million young men and women were on the move and homeless. n120 Two out of every five workers were out of a job n121 and wages in some areas had been halved. n122 Several dozen banks failed every week and the total was in the thousands. n123 National income was less than half what it had been in 1929 and net investment was minus $ 5.8 billion. n124 Although most of the population suffered passively, there were violent incidents focused on both private enterprise and government institutions. n125        B. Response to the Crisis The person chosen by the American people to respond to this crisis was Franklin D. Roosevelt, elected President in 1932 and inaugurated in March, 1933. n126 He won the election by employing a rhetoric that candidly recognized the existence of a crisis and proposed immediate reform. Roosevelt accepted the Democratic nomination in Chicago by promising "a new deal for the American people," n127 and during his campaign he urged renewed faith "in the forgotten man at the bottom of the economic pyramid." n128 Roosevelt identified himself with the progressive tradition, n129 and repeatedly proposed that government must be an agent of change. His stated goal was a new era of progress and prosperity. n130    Roosevelt acted swiftly after taking office. He called a special session of Congress, and during the famous "Hundred Days" from March 9, to June 16, 1933, Congress enacted a tide of new programs. n131 In March alone, Roosevelt received authority to control the banking industry, n132 reduce the salary of government workers, n133 and establish a Civilian Conservation Corps to provide jobs for thousands of young people. n134 In April, the United States went off the gold standard in an effort to raise stock and commodity prices. n135 In May, Congress established the Federal Emergency Relief Administration to provide federal money to fund local relief efforts, n136 passed the Agricultural Adjustment Act to pay farmers to reduce production, n137 and created the Tennessee Valley Authority to encourage development along the Tennessee River and its tributaries. n138 June brought the United States Employment Service to help people finds jobs, n139 The Home Owners' Loan Corporation to encourage home ownership, n140 the Glass Steagall Act to guarantee bank deposits, n141 and the National Industrial Recovery Act to regulate competition for industry and labor rights for workers. n142 In 1935 Roosevelt engineered a "Second Hundred Days," which yielded the Works Progress Administration to employ 3 million Americans, n143 the National Labor Relations Act, n144 and Social Security. n145 The last phase of the New Deal from 1937 to 1940 was less eventful than the early years partly because the enacted program though helpful, had failed to produce dramatic progress. n146 But, overall, the New Deal period of 1932 1940 yielded more rapid domestic policy changes than any time in American history, before or since.    C. Early Evaluation The first reviews of the New Deal were enthusiastic. The leader was Arthur M. Schlesinger, Jr., and he was joined by Eric Goldman, James McGregor Burns, and others. n147 Schlesinger credited Roosevelt and his associates with ending the social crisis of the 1930s and suggested they wrought "a whole new order of things." n148 According to Schlesinger, a vast number of American citizens had received benefits delivered by the federal government. He wrote, with respect to the early New Deal, "Franklin Roosevelt's two years in the White House had done much to transform potentiality into actuality." n149 In his book, Rendezvous with Destiny, Eric Goldman described New Deal action as bringing relief "with the swiftness of a summer shower." n150 Goldman continued, "The technological wonders of a World's Fair no longer seemed ironical, and as families roamed around the exhibits, planning when they could buy a Mixmaster or a car with free wheeling, those who were up on the latest movies were whistling "Who's Afraid of the Big Bad Wolf?'" n151 James McGregor Burns was more cautious, but credited Roosevelt with taking the role of "national father, of bipartisan leader, of President of all the people." n152    D. New Critics Beginning in 1964 with the publication of William E. Leuchtenburg's book, Franklin D. Roosevelt and the New Deal, n153 and continuing to the present, Roosevelt and the New Deal have received increasingly negative assessments. n154 Leuchtenburg called the New Deal "a halfway revolution." n155 Healthcare was left unchanged, the chronically poor received little assistance, and the situation of African Americans was little improved. He wrote:     The New Deal achieved a more just society by recognizing groups which had been largely unrepresented staple farmers, industrial workers, particular ethnic groups, and the new intellectual administrative class. Yet, this was still a halfway revolution; it swelled the ranks of the bourgeoisie but left many Americans share croppers, slum dwellers, most Negroes outside the new equilibrium. n156 Leuchtenburg explained this result, in part, by the character of Franklin Roosevelt. According to Leuchtenburg, "Roosevelt's sense of the land, of family, and of the community marked him as a man with deeply ingrained conservative traits." n157 Though Leuchtenburg recognized that "not all of the changes that were wrought were the result of Roosevelt's own actions or of those of his government," n158 he returned to emphasize the importance of Roosevelt. "Yet, however much significance one assigns the "objective situation,' it is difficult to gainsay the importance of Roosevelt." n159    The Leuchtenburg view was extended by others who concluded that the New Deal was a failure. n160 One example was Howard Zinn who wrote, "What the New Deal did was to refurbish middle class America." n161 He continued, "Through it all, the New Dealers moved in an atmosphere thick with suggestions, but they accepted only enough of these to get the traditional social mechanism moving again, plus just enough more to give a taste of what a truly far reaching reconstruction might be." n162 Zinn also explained the New Deal shortfall with reference to Franklin Roosevelt. In the field of economic reform, "FDR's ideas did not have enough clarity to avoid stumbling from one approach to another." n163 Zinn continued, "His ideas on political leadership showed the same indecision, the same constriction of boundaries, as did his ideas about economic reform." n164    Barton J. Bernstein not only labeled the New Deal a failure but also a "conservative achievement" curiously fostered by liberal politics. n165 For Bernstein, the New Deal served to protect business interests and engaged in only very limited redistribution. n166 He offered two prominent examples to support this argument. The first was Roosevelt's handling of the banking crisis, an emergency so dire that, according to Bernstein, virtually any solution would have been approved by Congress. Nevertheless, Bernstein noted, "To save the system, Roosevelt relied upon a collaboration between bankers and Hoover's Treasury officials to prepare legislation extending federal assistance to banking." n167 Bernstein's second example was Roosevelt's support of the National Recovery Administration (NRA), which, Bernstein wrote, was based on a failed effort to limit competition. Roosevelt's NRA revived the scheme and provided legal sanction for business controlled price fixing in the form of "codes" developed by industry groups. "Placing effective power for code writing in big business, NRA injured small business and contributed to the concentration of American industry." n168 Bernstein explained, "Sensitive to public opinion and fearful of radicalism, Roosevelt acted from a mixture of motives that rendered his liberalism cautious and limited, his experimentalism narrow. Despite the flurry of activity, his government was more vigorous about means than goals, and the goals were more conservative than historians usually acknowledge." n169    V. Explanations I now complete the defense of my thesis by explaining how and why, in my view, the Other Rules were left unchanged. The accounts of both the 1938 Rules and the New Deal are essential. At an operational level, the two accounts provide considerable clarity. Barton Bernstein's banking and NRA examples suggest a recurring pattern of New Deal practice. Spurred by the urgency of crisis, the New Dealers often accepted available conservative reforms from earlier times and used Roosevelt's political popularity to make changes that progressives had previously defeated. The 1938 Rules project is yet another example of this pattern. Certainly, Pound's 1909 speech was progressive in character, but shortly after, the ABA leadership apparently realized that Pound's proposals actually presented an opportunity to enhance the interests of ABA members and their clients provided Pound's ideas were applied to federal courts. Elite lawyers advancing the interests of national corporations would certainly benefit from a uniform federal procedure, a development that would match the uniform federal commercial law in these pre Erie days. n170 The later addition of the law and equity joinder proposal was a step in the same direction because joinder of a national equity procedure with local common law procedure certainly suggested that the equity rules were likely to serve as a starting point for change. These same rules had proved very useful to national business interests.    The American Bar Association supported change in federal procedure, and, ironically in light of Pound's oration, progressives opposed the ABA plan. The progressives prevailed, and the ABA gave up the fight, leaving a record with carefully drafted legislation and endorsements. n171 At this point the New Dealers came to power, and Attorney General Homer Cummings was in a hurry, as were his New Deal colleagues, for action. By 1934, Cummings had already persuaded Congress to make major changes in federal criminal law, and he moved on to a civil law project procedural reform. n172    Cummings adopted the ABA federal procedural proposal and acted to solve the political problems that had prevented earlier approval of an enabling act. n173 Cummings was successful in a remarkably short period of time, a tribute to Roosevelt's popularity, but the result suggests that Cummings may not have paid thoughtful attention to the substance of the legislation. The law was exactly the same as the most recent ABA proposal, with authority to write specific rules delegated to the then conservative Supreme Court. The Court appointed an Advisory Committee, President Hoover's Attorney General was chairman, and led a conservative majority. The result was a set of proposed rules drawn from federal equity procedure and so terse that federal judges could continue much of their conservative practice.    Assuming that this account is accurate, one might ask why the rhetoric of the 1938 Rules is, at points, progressive. The simple answer is, I submit, the prospect of review by Congress. Progressive rhetoric might encourage acceptance by Congress because history made clear that opposition, if any, to the proposed federal rules would come from progressive members of Congress. If the rhetoric were attractive, given the complexity of the subject matter, the chances of success were high. n174 Predictably, there was progressive dissent in Congress, n175 and the views of Justice Brandeis and Senator Walsh were strongly recalled, n176 but Cummings prevailed.    With respect to why this sequence unfolded, Leuchtenberg, Zinn, and Bernstein all explain the ultimate conservative character of the New Deal as the result of the personality of Franklin D. Roosevelt. All three agree that Roosevelt's instinctive acceptance of the American social structure, as he knew that structure, resulted in narrow boundaries for New Deal change. The Other Rules correspond, in the trial court setting, to the larger social structures that Roosevelt accepted without question. Both provide crucial context, the one for trial and result, the other for American social life itself. Whether Roosevelt paid any continuing attention to the 1938 Rules project is, so far as I can determine, unknown. Homer Cummings did, pointedly, announce that Roosevelt had approved the 1934 effort to begin the rules project, and surely the dramatic reversal of fortune experienced by the Rules Enabling Act proposal must be attributed to Franklin Roosevelt, not to Cummings. Also, Cummings and Roosevelt closely collaborated on another famous legal reform venture, the ill fated Judicial Reorganization Act, intended to "pack" the Supreme Court. n177 The possibility that Roosevelt actually played a role in the 1938 Rules project is intriguing, but without more, cannot be established. Yet, following Leuchtenberg, "It is difficult to gainsay the importance of Roosevelt." n178    But whether or not Franklin Roosevelt played a personal role in the 1938 Rules Project, the importance of Roosevelt in limiting the New Deal provides insight about the failure to modify the Other Rules. Michael Klarman has persuasively argued in his recent book n179 that "judicial decision making involves a combination of legal and political factors." n180 He continued that "because constitutional law is generally quite indeterminate, constitutional interpretation almost inevitably reflects the broader social and political context of the times." n181 But, Klarman cautioned, "The notion that the values of judges tend to reflect broader social mores requires qualification: Though judges live in a particular historical and cultural moment, they are not perfect mirrors of public opinion. Judges occupy an elite subculture, which is characterized by greater education and relative affluence." n182 Application of Klarman's observations to Roosevelt's role in the New Deal plainly suggests another example of influence wielded by an elite subculture to determine national policy. Similarly, the story of the 1938 Rules suggests yet a third example of elite preferences at work. The failure to modify the Other Rules was the work of an elite subculture, which included the American Bar Association, the Supreme Court of the United States, and the Advisory Committee. n183 Thus Klarman's argument that constitutional law sometimes reflects elite opinion of the time can be extended to civil rules made by members of essentially the same group. n184    VI. Conclusion Appreciation of the Other Rules can lead to a more accurate account of the 1938 Rules. From the very beginning, the effective process instituted September 16, 1938 was conservative in effect. The slim text of the 1938 Rules was located in a traditional context, which was left unchanged and largely unmentioned by the rulemakers. This result was not inevitable since most of the Other Rules could have been included in an expanded version of the 1938 Rules, and modified as desired. n185 But this modification did not take place, perhaps because Franklin Roosevelt's New Deal mission was to restore traditional American society, not to replace it with something new, and probably because the elite group of lawyers who produced the rules likewise did not seek radical change.    If this conclusion is correct, one might ask whether radical procedural change is ever possible? My answer is, yes, provided the process of making rules is shifted from judicial to legislative supervision. The early progressives repeatedly expressed a preference for legislative, as opposed to judicial, policy making as the forum most likely to produce popular change. In 1908 Roscoe Pound wrote:     Formerly it was argued that common law was superior to legislation because it was customary and rested on the consent of the governed. Today we recognize that the so called custom is a custom of judicial decision, not a custom of popular reform. We recognize that legislation is the more truly democratic form of lawmaking. n186     The result of the 1938 Rules Project suggests that the progressives' fear of judicial policy making was well founded, suggesting that a legislative forum provides the only opportunity for radical change. Anyone seeking progressive federal rule reform might well first argue that Congress should take back full control of the process. n187    My answer to John Leubsdorf's question n188 is clear: The myth of civil procedure reform is false, at least the part about the 1938 Rules. If, as Leubsdorf argues, the myth of past reform impedes present reform, my conclusion suggests that current reform can now be planned free of any illusion that progressive reform was achieved in the 1938 Rules. Moreover, the historical accounts above and my conclusion strongly support Leubsdorf's ultimate conclusion that "the most firmly implanted myth of procedural reform may be that we can talk about it as simply an effort to increase judicial efficiency, without talking about our visions of procedural and social justice." n189 The current influence of the Other Rules and their effect on the 1938 Rules is largely the result of failure to adequately discuss these visions before and during the rulemaking process. Indeed, this debate should begin in the law school classroom if the myths are to be overcome. Outside the professional setting, my answer to Leubsdorf's question might serve to dispel cultural myths about the threat of civil litigation. n190    Judith Resnik's observation that the 1938 Rules are silent on many subjects seems quite accurate, but incomplete. She does not propose, as I do, that these gaps were filled by the Other Rules, which rendered the functioning system conservative in character. Resnik also noted that rhetoric about the Rules has shifted from better use of the federal system to avoidance of the model altogether. Perhaps a spreading, but unarticulated, perception that the promise of progressive change is at odds with the reality of function has shifted discussion to avoidance. n191 My general conclusion articulates and supports this perception and thus offers an insight about the interest in avoidance.    Stephen Subrin's conclusion that the 1938 Rules were a triumph of equity over common law procedure seems correct in the sense that the 1938 Rules were largely drawn from the then existing Equity Rules of 1912. n192 However, his further assumption that this decision excluded common law influence is contrary to my view that the Other Rules, all common law in origin, continued in effect. My opinion derives logically from the fact the 1938 Rules both prescribed a uniform federal procedure and unified law and equity in a single "civil action." Although the prescribed uniform rules were drawn largely from equity, the unification of law and equity necessarily brought forward common law procedure, which was neither excluded by the prescribed rules nor otherwise suppressed. The materials in Part III above show that these common law rules do survive. This analysis suggests that Subrin's disappointment with the current function of the 1938 Rules might stem, in fact, from the presence rather than absence of an important common law component, the Other Federal Rules of Civil Procedure.
           
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