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The topic for this symposium is procedural change and the respective roles of Congress and of the judiciary in making the rules that govern civil justice. The immediate focus is the last decade of innovations, from the 1980s when a group sponsored by Senator Joseph Biden published a pamphlet Justice for All: Reducing Costs and Delay in Civil Litigation, through the enactment in 1990 of the Civil Justice Reform Act (CJRA), to its study by RAND over the past few years, to 1997—the year in which Congress considers whether to renew the Civil Justice Reform Act. The central questions are: What is the shape of the litigation system in the United States in the late 19908? How—if at all—does it look different than it did before Congress enacted the Civil Justice Reform Act of 1990?
My response requires an understanding not only of the last decade but also the last half century, the years since 1938 when the Federal Rules of Civil Procedure became effective. My purposes are several: to map the respective roles of the federal judiciary and of Congress in governing civil processes; to understand the relationships between national and local rule regimes; to examine the changes over these decades in the practices of judging, and to learn more about the interactions of judges and lawyers during the course of civil litigation. Below I rely on two examples (changes related to the size of the civil jury and those related to the role of the judge during the pretrial process) from which to learn about how practices change, about the relationship between practices and rule regimes (be they local or national), and about the respective roles of the federal judiciary and Congress in altering both practice and rules.
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