Paul R. Dubinsky

United States: Harmonisation and Voluntarism. The Role of Elites in Creating an Influential National Model, the Federal Rules of Civil Procedure

The starting place for any discussion of civil procedure in the United States is the Federal Rules of Civil Procedure (‘FRCP’), rules first enacted in 1938 and made applicable solely to federal courts. Even though the adoption of these rules by state courts and state legislatures has never been mandatory, nonetheless the FRCP have to a great extent served as a highly influential model impacting the development of procedural law in all 50 states. Why is this so? Why did voluntary processes succeed in bringing about the harmonisation of procedural law in the U.S.? In part the answer is that the movement that produced the FRCP was not primarily an effort to bring about harmonisation; it was as much an effort at reform. In part the answer is that from the perspective of greater access to justice and greater likelihood of justice on the merits, the FRCP were an improvement over existing state law and practice. But neither of these two explanations is a complete answer. This chapter focuses on the powerful role of emerging elites that stood much to gain from the creation of a federal law of civil procedure and from its dissemination to state systems throughout the country. Three groups in particular gained much in stature: elite law schools, the emerging class of law firms seeking to practice law on a multistate basis, and federal judges. Based on the American experience, the insight potentially useful in evaluating other harmonisation movements, especially in the EU, is that harmonisation is most likely to go forward when determined and resourceful interest groups can identify clear gains to themselves from such a process.