What Does It Mean to Say that Procedure is Political?

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An appointment to the committee that reviews and amends the Federal Rules of Civil Procedure is unlikely to earn you any friends these days. The Advisory Committee on Rules of Civil Procedure (“the Advisory Committee” or “the Committee”) routinely finds itself at the center of controversy as it undertakes its mission to improve the rules that govern civil matters in our federal courts.

Attorneys and parties who often appear in federal court criticize not only the product of the Advisory Committee's work but also the integrity of its members. There is no shortage of commentary charging procedural reform with political maneuvering. Scholars have documented the sociological makeup and political affiliation of the Advisory Committee; they have mapped industry lobbying on procedural matters in both Congress and with the Committee itself. Many have argued that procedure has been a blunt political instrument, with rulemakers, courts, and Congress all engaging in civil procedure reform to achieve political ends through seemingly apolitical means.

Most recently, the discussion of procedure's politics has centered on discovery reform, especially upon the reform efforts that culminated in the 2015 amendments to the Federal Rules of Civil Procedure. One of the centerpieces of that reform process was the 2015 amendments' adoption of “proportionality” as a key standard to lower costs and increase discovery efficiency. The proportionality amendment was among the most controversial amendments the Advisory Committee proposed.

Perhaps because of the highly politicized context of discovery reform, the Advisory Committee has tended to engage in what it hopes will be objective or empirical criteria. The concept of proportionality took center stage as an objective criterion and as a means of furthering another objective aim: “efficiency.” Unfortunately for the Advisory Committee, this retreat into the appearance of objectivity did not silence the critics, likely because the concepts deployed in analyzing efficiency are neither objective nor coherent. A century ago, in a different doctrinal context, Robert Hale helped to expose the limits of judicial objectivity. This Article presents Professor Hale's analytical critique as a helpful model for how to think about judicial branch rulemaking when political judgment is inescapable. In part, this Article is motivated by a desire to further the scholarly assessment of procedure's political role, while turning away from the assessment of individual ideological commitments and material interests of constituent parties.

Procedure is not the first field of law to face controversy along these lines. Law's independence from politics, in both its descriptive and normative aspects, is a century-long legal challenge. This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.


Originally published in 2017 by Fordham Law Review.