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I have been invited to comment on Judge Carter's paper and on the conference proceedings. My concerns are threefold. First, many proceduralists seek to invoke the views of the drafters of the Federal Rules to advance visions of what the Rules should look like and how those Rules should be interpreted. Constitutional law scholars have already made plain the complexities of analysis based upon "framers' intent." We proceduralists should learn those lessons and be reluctant to draw too much meaning from "the framers." Moreover, whatever one believes about analysis based upon intent, the utility of that approach in the context of the Federal Rules is exceedingly questionable. Given the process of rule enactment, the statutory and self-proclaimed limits of the Advisory Committees, and the self-described minimal involvement of the Judicial Conference and of the Supreme Court, privileging the words of the Advisory Committee notes and the supposed intent behind those words becomes all the more suspect.
Second, a remarkable aspect of this conference has been the repeated references to the "political" aspects of the Federal Rules of Civil Procedure. From a variety of perspectives, many of the speakers have made comments about the political implications of various Rules. Others, seeming to accept the political content of the Rules, have warned that "we" (that is, all litigants) are safer when the facade, if not the reality, is maintained that "neutral" Rules are applied to "anonymous" (that is, not identifiable in advance) plaintiffs and defendants. I believe we cannot and should not ignore the political content and consequences of procedural rules. Over the last decade, a variety of powerful "repeat players" have sought, sometimes openly, to influence "court reform" efforts. By and large, that work has been done not by letters written to the Advisory Committee on Civil Rules, but rather by lobbying efforts directed towards legislatures and the public, by well-financed media campaigns, and by support for conferences and meetings to address and describe the "litigation crisis." However appealing might be the notion that writing the Rules of Civil Procedure (in contrast to the Rules of Criminal Procedure) is a "neutral" task with diverse consequences on anonymous and interchangeable civil plaintiffs and defendants, that description is no longer available. "Tort reform," among other events of the last decade, has denied us the refuge of a comforting image.
Finally, fifty years after the Federal Rules were enacted, we must wonder about whether litigation of individuals' cases will be available fifty years hence. During these past five decades, federal courts have become less willing to attend to small cases and to individual problems. Increasingly, these cases are diverted—to state courts, to agencies, to alternative dispute resolution, to settlement, to management, to arbitration. Increasingly, those cases that remain in the federal system are aggregated—by multi-district litigation, by bankruptcy, by interpleader, by class action, by consolidation, by informal procedures. Increasingly, federal judges complain that they do not have time (and some say interest) for cases of small value, for cases that seem only to raise individual claims of wrongdoing. The pressures for aggregation and its growing popularity affect perceptions about the utility of having federal courts address individual claims.
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