Stephen C. Yeazell

The ordinary and the extraordinary in institutional litigation.

Institutional litigation, in which courts are requested to oversee the operation of large public institutions, has been frequently attacked as a departure from the traditional model of litigation. In this Article, Professors Eisenberg and Yeazell argue that the procedures and remedies employed in institutional litigation are not unprecedented but have analogues in older judicial traditions. Nor, they assert, do the doctrines of separation of powers and federalism present any obstacles to institutional litigation. They conclude that the novelty lies in the newly created substantive rights which courts are asked to enforce.

Judging Rules, Ruling Judges

The Federal Rules of Civil Procedure currently govern all federal and, indirectly, most of state litigation in the United States. There are deep flaws in the process by which those Rules are framed and amended. Since the original Rules were proposed and adopted in the 1930s, Congress and the courts have changed the process for amending the Rules and the composition of the groups responsible for those amendments. Once a flat, two-step process in which lawyers and academics proposed rules for approval by judges, the system now has twelve layers and is dominated by judges. Three unfortunate consequences flow from these changes. First, increased judicial responsibility for rulemaking involves the federal judiciary in unnecessary clashes with Congress. Second, the proliferation of steps makes the amending process unwieldy and unnecessarily slow. Third, changes from a trial-dominated to a settlement-dominated litigation system make judges less skilled in assessing the effect of proposed changes. This essay summarizes the steps that took us to the present system, explaining the ill consequences of successive well-intentioned and apparently minor changes. It then proposes an alternative. The essay argues for eliminating most of the present layers of process, and for returning to a model in which lawyers take the lead in proposing changes, with judges approving or disapproving the final product.