Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

This birthday celebration of the Federal Rules is a time to marvel at the enduring character of the 1938 Federal Rules of Civil Procedure. Given the dramatic changes that have taken place in litigation over these decades, it is no surprise that the proponents of the philosophy of uniform and trans-substantive rules believe that time has proved their case. I want to suggest, however, as indeed others already have, that trans-substantive rulemaking in fact has been eroded and replaced by ad hoc versions of specialized rules. One clear example of such ad hoc proceduralism comes via the increased number of judicial adjuncts, who customize procedure for particular and individual cases. This example supports those who call for a different approach to federal rulemaking. The judicial adjuncts to whom I refer are primarily masters and magistrates. There are also the newly created arbitrators in court-annexed arbitration used in a number of districts, but that experience is relatively new, and I bypass them for purposes of present discussion. There is no doubt that the use of judicial adjuncts has been extremely valuable in processing our expanding and complicated contemporary litigation caseload, and thus I intend my comments less as an attack on the use of masters and magistrates than as an example of why more dramatic procedural reform is in order. In short, I think delegations of judicial power to masters and magistrates have become the substitute for a more precise and specialized procedural code. To some extent then, the debate can be seen as one between those who are satisfied with an individual case-by-case customized procedure put in place by judicial adjuncts versus those who advocate more formal rules that do not slavishly adhere to a uniform and trans-substantive format. These divisions are also not as sharp as I first described them because I think the development and customization of specialized procedures under the present judicial adjunct models actually provide some of the building blocks on which a more formal system of particularistic rules can be erected. Thus, the case study I present has a two-fold purpose. First, I make the claim that a close examination of modern judicial adjuncts exposes the myth that there is in fact a single set of "federal rules of civil 'procedure," and I advocate establishing formal alternative procedural tracks for processing different types of cases. Second, and on a less ambitious note, I believe that given the way special masters are now being used, specific revisions in Rule 53 itself are necessary. Because both of these proposals have more to do with the use of special masters than magistrates, my emphasis will be on the use of special masters. But it is worth looking at both models for points of contrast.

First Page

2131

DOI

https://doi.org/10.2307/3312210

Volume

137

Publication Date

1989

Download

Share

COinS