Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.
The bill's enactment, therefore, could additionally complicate the increasingly complex civil justice system. Indeed, certain of the measure's provisions may impose greater expense and delay in civil litigation, thereby exacerbating numerous current problems rather than producing the reforms' ostensible purpose of ameliorating the difficulties. These phenomena mean that the Common Sense Legal Reforms Act warrants analysis. This Essay undertakes that effort.
Part II of this Essay examines the backdrop against which the proponents of the Common Sense Legal Reforms Act drafted the legislation. The Part emphasizes those continuing public and private law reform efforts with which many provisions of the measure promise to conflict.
Part III descriptively analyzes the specific procedural and substantive requirements of the CSLRA and considers particular provisions' adverse effects on individual cases, ongoing reform initiatives, and the civil justice system. The Part finds that numerous statutory prescriptions will have deleterious impacts on plaintiffs and resource-poor litigants by, for instance, restricting their federal court access. The act may also disrupt continuing civil justice reform efforts, thus enhancing complexity and disuniformity in federal civil procedure and concomitantly increasing litigation cost and delay.
Part IV affords suggestions for the future. These recommendations principally urge Congress to reject or delay the passage of the Common Sense Legal Reforms Act. If Congress remains unpersuaded that the legislation will have numerous detrimental effects on much civil litigation and on the broader civil justice system, or if Congress chooses to proceed for other reasons, it should at least consider additional options. For example, Congress should not enact the CSLRA provisions that will conflict with ongoing reform initiatives.
Carl Tobias, Common Sense and Other Legal Reforms, 48 Vand. L. Rev. 699 (1995)