Document Type

Article

Publication Title

Florida Law Review

Abstract

To those who study the evolution of law, the recent amendments to the discovery provisions of the Federal Rules of Civil Procedure (Federal Rules) provide a unique opportunity. In recent years, significant attempts have been made to reduce the hegemony of the Advisory Committee on Civil Rules (Advisory Committee) as the source of all change in federal procedure. For example, the 1988 Judicial Improvements and Access to Justice Act required that Advisory Committee meetings and minutes be open to the public, thereby facilitating public input into rulemaking. The 1990 Civil Justice Reform Act shifted some authority over rulemaking to the federal districts, allowing (if not urging) the districts to undertake experiments in judicial administration. Such experimentation could include testing alternatives to then-current methods of discovery. But. notwithstanding these innovations, the Advisory Committee fundamentally restructured discovery. Despite the strong opposition of interest groups ranging from the tightly organized court reporters to the well-financed defendants' bar and eloquent civil rights bar, and before the districts' experiments reached fruition, the Advisory Committee's proposed amendments to the discovery provisions in the Federal Rules were shepherded through the Standing Committee on Practice and Procedure, the Judicial Conference, the Supreme Court, and Congress. The proposed amendments became law on December 1, 1993, defying public choice theory, the reforms of open-government advocates, and the carefully laid plans of legal empiricists. This episode presents a paradox that is worthy of careful consideration. This article begins that examination with an overview of the rules themselves and the problems the rules are perceived to raise. The article then suggests reasons why the last half-decade's changes in the rulemaking process were not more effective. The point of the article is not to predict the failure of these reforms-the reforms may, in fact, be a rousing success. Rather, this article tries to tease from the 1993 discovery amendment process some guidance for those who attempt rulemaking reforms in the future.

First Page

9

Volume

46

Publication Date

1994

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