In the mid-1970s, Professor Abram Chayes published one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, which described a paradigm-shift with the emergence of public interest law in the 1960s. As I have written elsewhere, Professor Chayes' model no longer holds either descriptive or prescriptive power at the end of the twentieth century. The public interest law paradigm Professor Chayes described fails as a model for the complex litigation that the American judicial system has experienced in the last twenty years.
Without repeating that critique, two observations are in order. First, modern complex litigation, particularly mass tort litigation, is being resolved in ways that resemble private legislation, negotiated and approved by unelected people. This private legislation ― most often class action settlement ― affects thousands and, in some instances, hundreds of thousands of citizens. Second, a new descriptive paradigm is needed to capture both the essence and the nuance of the complex litigation that the American judicial system has experienced at the end of the twentieth century.
Scholars who posit models or describe paradigm shifts chiefly are engaged in the enterprise of re-evaluation of facts. That is, new descriptive models emerge from a fresh appreciation of facts, replacing former orthodoxy. This is certainly what Professor Chayes did in describing the emergence of the public law model. Professor Chayes viewed the litigation landscape of the 1960s that gave rise to the modern class action rule, structural injunctions and institutional reform litigation. He assimilated these facts and reconstructed prior litigation theory that had been based on a model of bipolar litigation.
While it is difficult enough to describe a model of complex litigation at the end of the twentieth century, it is perhaps even more challenging to forecast the future of complex dispute resolution. History has taught that adjective law-civil procedure-is not static. In particular, complex litigation has pushed the boundaries of civil rules that were designed for simple litigation. Therefore, the globalization of social and economic transactions in the twenty-first century will affect complex litigation, and the procedures for resolving complex disputes will be informed by legal lessons from abroad.
Regarding complex dispute resolution, the future of complexity is more complexity. Complex systems tend to become more complex. Moreover, procedural rules develop in a dialectic. Thus, systems tend to start with simple rules, but over time rules tend to become longer, more nuanced, textured and complex. In the past twenty years, almost every rule revision has yielded a lengthier and more convoluted rule, as the drafters have attempted to provide solutions for every problem and contingency. Part of this dialectic is that the impulse towards complexity inevitably leads to reform and simplification. At some point, when the rules have become so complex, intricate and obtuse ― creating traps for the unwary ― reformers avow to eliminate the rules and start again, with simple rules.
This dialectic impelled the great procedural reforms of the nineteenth century that famously resulted in the creation of ‘one civil action’ and, in one simple declaration, swept away centuries of procedural cobwebs with the abolition of the forms of action. At the end of the twentieth century, it is difficult to perceive where the civil rules are in the context of this dialectic. Have the civil rules become sufficiently complex that, in the twenty-first century, the rulemakers will embark on another age of procedural reform? Will the rulemakers again feel the need to declare, anew, that there will be one form of action, and it will be a simple action? Or, in this dialectic, will the rulemakers abandon the grand experiment with trans-substantive rules and revert back to substance-based procedure?
History also has demonstrated that the judicial system lacks the forecasting powers to anticipate new problems. Attorneys, judges and rulemakers simply cannot know what kinds of problems, disputes or grievances will emerge to challenge the role of the judiciary. Jurists, then, typically engage in rule reform after-the-fact, to deal with problems that the rulemakers never anticipated.
In our generation, for example, the most famous illustration of the judicial system's failure to anticipate new problems is the rule drafters' failure in the early 1960s to anticipate modern mass tort litigation. Thus, the Advisory Committee on Civil Rules revised the federal class action rule without knowing what was coming. If the Advisory Committee could not forecast mass torts, what problems will emerge in the next millennium that are not currently foreseeable? There are other examples, of course; but whom at mid-century could have anticipated agent orange, the Dalkon Shield, breast implants, fen-phen or tobacco litigation?
Moreover, in reflecting on the future of complex litigation, it is impossible to ignore the impact of technology and globalization. Technology effectively has enabled international transactions to transcend national borders, and will affect the way in which lawyers conduct their professional activities. Globalization means that business, social and legal transactions will also transcend national borders.
In the twenty-first century, the impact of technology and globalization will result in legal problems of global reach, and lawyers will be practicing on a world stage. Therefore, the American lawyer will need to understand comparative law and how American legal concepts constitute a kind of ‘outlier‘ among legal systems. This is especially true regarding the ways in which other legal systems resolve complex legal disputes.
The globalization of legal practice will have other consequences. As complex legal problems transcend national borders, American procedural law may well converge with the adjective law of civil law systems. The pronounced differences between Anglo-American procedure and civil law countries may fade or merge as each system learns from the experiences of the other. The interaction of American lawyers and scholars with civil law colleagues may well spur a convergence of procedural law.
Linda S. Mullenix, Lessons from Abroad: Complexity and Convergence [Reuschlein Lecture], 46 Villanova Law Review 1 (2001).