The United States Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to Law?
This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure. The designation essay is deliberate. This essay is a wake up call to American proceduralists to acknowledge what they all know: the Federal Rules of Civil Procedure fail to fulfill the fundamental goal of civil procedure just about everywhere: apply law to facts to determine rights and decide cases. Because the rules of procedure of American states largely follow the Federal Rules, the federal failure is a national failure. Some American proceduralists excuse this failure by asserting that the rules fulfill other "dynamic" goals. The essay is consciously polemical. It assumes failure is a given. In my book, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011) I document that failure. Skeptics are invited to consult that book.