In March 1991, the Judicial Conference of the United States designated the Southern District of Texas as one of ten pilot district courts under the Civil Justice Reform Act of 1990 required to submit and implement a civil justice expense and delay reduction plan by December 31, 1991. The Advisory Group's Report and Plan are published in this volume and form the basis for the critical commentary following the Report. The procedural recommendations and new local rules set forth in the Report and Plan became effective in the Southern District on January 1, 1992.
In essence, the Southern District has become a laboratory district for implementing sweeping procedural reform aimed at reducing civil litigation cost and delay. In this respect, the Southern District is a vanguard district for a procedural revolution that will spread across all ninety-four federal district courts over the next two years. The importance of the Southern District as a pilot district, then, can hardly be underestimated, as many eyes will be focused on the district to scrutinize whether the proposed procedural reforms achieve the stated goals of litigation cost and delay reduction.
The Civil Justice Reform Act of 1990 is effectuating a nationwide procedural revolution that is probably unparalleled since the enactment of the Federal Rules of Civil Procedure in 1938. The Act mandates local, grassroots rulemaking by amateur advisory groups — a novel process that essentially circumvents the usual judicial rulemaking committees that accomplish civil rule reform, which also have been in place since 1938. In this respect alone, the Civil Justice Reform Act is quite extraordinary.
There can be little doubt that as various federal districts publish and implement their civil justice reform plans, these efforts will generate a large body of commentary and debate in the foreseeable future. In the short run, however, some aspects of both the legislation and the reform movement it has engendered are of particular note. First, the Civil Justice Reform Act needs to be understood against a backdrop of civil justice reform efforts that have been simmering for the last few years in all three branches of the federal government. On the legislative side, the Act requires seemingly precipitous and urgent reform, a mandate that indicates Congress's frustration with the glacial pace of procedural reform that is usually accomplished through third-branch deliberative rulemaking.
The Civil Justice Reform Act demonstrates that Congress is going to have procedural justice reform, and is going to have it now. The Civil Justice Reform Act of 1990 must be understood as part of a more sweeping effort to impose complete procedural reform at the federal level. The executive branch, not content with the rule reform forced by Congressional legislation, has been pressing for additional reforms through a variety of its own initiatives. For example, an October 1991 executive order has imposed similar civil justice reform measures on all executive-branch departments and agencies.
Further, Vice-President Dan Quayle's infamous August 1991 attack on the legal profession, delivered to the annual meeting of the American Bar Association, was based on a report from the President's Council on Competitiveness entitled Agenda for Civil Justice Reform in America. This “agenda” for civil justice reform contains substantially the same package of procedural reforms set forth in the Civil Justice Reform Act and the President's executive order on civil justice reform. The pattern of similar, if not identical, recommendations across all three branches of government is rather striking.
Second, in addition to understanding the Civil Justice Reform Act in the context of a larger contemporary reform movement, it is important to focus on the types of reform measures that the legislation requires or strongly recommends. In this regard, the almost-exclusive emphasis of the Act is on tighter managerial control over pretrial proceedings, curbing discovery abuse, and recourse to alternative dispute resolution. These areas of emphasis raise interesting problems relating to party autonomy and control over the conduct of litigation, as well as party access to federal courts and the right to an adjudicatory model of dispute resolution. Nevertheless, with a series of Congressional mandates from the Civil Justice Reform Act, the Advisory Group for the Southern District has recommended an array of innovative pretrial procedures and new local rules on early pretrial conferences and alternative dispute resolution.
Third, an important issue that is beyond the scope of this introductory comment concerns the questionable constitutionality of Congress's intercession in the procedural rulemaking arena. Equally troubling is Congress's further delegation of procedural rulemaking authority to local, non-expert advisory groups. Thus, Congress's sweeping intrusion into the judiciary's rulemaking function is the most revolutionary aspect of the Civil Justice Reform Act. The creation of ninety-four local rulemaking advisory groups, with continuing existence beyond their initial task of drafting and implementing civil justice reform plans, severely undercuts the jurisdiction and authority of the federal judiciary's Advisory Committee on Civil Rules. It is unclear what the continued purpose and vitality of that body will be in light of the Civil Justice Reform Act. We might ultimately discover that, with regard to procedural rulemaking, the executive and legislative branches have sent forth too many procedural cooks.
Linda S. Mullenix, Civil Justice Reform Comes to the Southern District of Texas: Creating and Implementing A Cost and Delay Reduction Plan Under The Civil Justice Act of 1990, 11 Review of Litigation 165 (1992).