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Study by Prof. Burbank shows how scales have tipped against plaintiffs in civil litigation

September 08, 2014

Stephen B. Burbank, the David Berger Professor for the Administration of Justice.
Stephen B. Burbank, the David Berger Professor for the Administration of Justice.
A forthcoming article in the Nevada Law Journal, “Federal Court Rulemaking and Litigation Reform: An Institutional Approach,” by Stephen B. Burbank and Sean Farhang illustrates how, over the last 50 years, changes in the Civil Rules Advisory Committee, whose members are appointed by the Chief Justice of the U.S. Supreme Court, have been associated with shifting the balance against plaintiffs seeking to enforce rights in civil litigation.

Laws passed by Congress often bear the ideological thumbprint of the political party that championed them, but new research shows that even the procedural rules governing civil litigation in federal court may be affected by the ideological preferences of judges and lawyers who sit on the rulemaking committee responsible for drafting those rules. 

A forthcoming article in the Nevada Law Journal, “Federal Court Rulemaking and Litigation Reform: An Institutional Approach,” by Stephen B. Burbank, the David Berger Professor for the Administration of Justice at the University of Pennsylvania Law School, and Sean Farhang, Associate Professor of Political Science and Public Policy at the University of California, Berkeley, illustrates how, over the last 50 years, changes in the Civil Rules Advisory Committee, whose members are appointed by the Chief Justice of the U.S. Supreme Court,  have been associated with shifting the balance against plaintiffs seeking to enforce rights in civil litigation. 

Congress often encourages private enforcement of statutes, in addition to or in place of public enforcement, by including attorney’s fee or multiple damages provisions in those statutes. It is most likely to do so in a period of divided government when, if public enforcement were the only option, Congressional preferences could be subverted by those acting under the control of the executive branch of the U.S. government. The huge increase in federal civil litigation that started in the late 1960s is closely correlated with the introduction of such provisions in federal statutes. 

A victim of racial discrimination, for example, may not be able to find a lawyer to bring his claim since he may not be able to pay that lawyer’s hourly rates, and his claim may not involve damages substantial enough to attract a lawyer who takes cases on a contingency fee basis. But once Congress made attorney’s fees available to plaintiffs in civil rights cases, a pool of private attorneys developed who were willing to take those cases. 

Burbank and Farhang are studying how, since the rights revolution of the 1960s, the various political institutions of the federal government, including courts, have competed to reduce private enforcement by eliminating or diluting the incentives of private plaintiffs to sue. In another, related article recently published in the University of Pennsylvania Law Review, “Litigation Reform: An Institutional Approach,” Burbank and Farhang analyzed an original data set of all Supreme Court decisions from 1970 to 2013 that interpreted the Federal Rules of Civil Procedure on issues that had implications for private enforcement. They found that the Court has increased the number of such cases it decides in recent years and that its decisions were increasingly anti-private enforcement. 

The co-authors also found that “by 2013 the Federal Rules decisions were even more influenced by ideology” than the Supreme Court’s decisions in another original data set that the authors analyzed, which included the Court’s decisions on the existence and scope of private rights of action, standing, attorney’s fees, and arbitration of federal claims. Taking the two sets of cases together, Burbank and Farhang conclude that the Supreme Court has been much more effective than either Congress or the executive branch in retrenching private enforcement.

The new forthcoming article in the Nevada Law Journal examines the Federal Rules themselves, as opposed to Supreme Court decisions interpreting them, and it shows that they, too, have become increasingly unfriendly to plaintiffs. Burbank and Farhang infer that the shifting ideological makeup of the Advisory Committee, which is responsible for drafting the Federal Rules, has had an effect on rules that implicate the ability of plaintiffs to enforce federal rights. Yet, the number of such amendments is small, which, the authors suggest, reflects the difficulty of achieving bold reform through court rulemaking — a form of lawmaking that is akin to legislation in numerous institutional respects, including prominently the difficulty of changing the status quo and of taking away rights. 

Burbank and Farhang’s research shows that over the past 40 years, members named to the Advisory Committee by a succession of Republican Chief Justices are more likely to have been judges, and that they are more likely to have been appointed by Republican presidents. In addition,  practitioner members have shifted away from lawyers representing individuals, and from practices balanced between plaintiff and defense representation, toward lawyers representing corporations/business and defendants. 

Rulemaking in the first decade of the 21st century was relatively restrained, note Burbank and Farhang, but the retrenchment of private enforcement has been a major goal of the Republican Party since at least the early 1980s. “It may be that the last decade in our study was a mere interlude in an ongoing struggle for power,” the authors write. 

Indeed, this September the Judicial Conference of the United States will consider proposed amendments to the Federal Rules of Civil Procedure that are designed to further reduce the amount of discovery to which parties are entitled. Discovery is essential to private enforcement. Burbank and Farhang’s new research illustrates how the proposed amendments are simply the latest of a long line of proposals and amendments that disfavor plaintiffs. 

The co-authors observe in the paper: “A rulemaking committee appointed by a Republican Chief Justice that is dominated by judges appointed by Republican Presidents and lawyers who defend corporations/business may demonstrate again, as it did in 2000, that it should be understood, to a material degree, as a political institution carrying out a partisan project.”  

Burbank and Farhang find that in that part of the federal legal landscape that affects private enforcement, the scales have tipped in favor of defendants in civil suits — not primarily because of statutory or administrative changes, but because of amendments to the Federal Rules of Civil Procedure and, most importantly, Supreme Court decisions interpreting them.