Professor Stephen Yeazell's recent essay, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 994, is incisive and provocative. Professor Yeazell affords novel ways of apprehending civil process while commencing the daunting task of constructing a more comprehensive and interrelated account of that process. The essay opens numerous new avenues for exploration and raises many thought-provoking questions, and its ideas will spark lively debate across a broad spectrum of issues relating to federal civil procedure and the federal courts.
In Professor Yeazell's essay, he explained that reconfiguring the civil litigation process in courts of the first instance while maintaining essentially constant the principles of appellate review since the 1930s has realigned litigation's power relationships. The focus of civil practice has moved from trials to the pretrial process, while circuit courts have scrutinized less rigorously district judges' decisionmaking. The essay asserted that modifying one constituent of the larger procedural system has unleashed the law of unintended consequences, most importantly, by shifting considerably more authority to courts of original jurisdiction and transferring some public power into the hands of private attorneys.
Professor Yeazell declined to debate the desirability of the specific procedural changes, such as enhanced judicial discretion to manage pretrial, that led to the larger transformations, but suggested the need for more thorough comprehension of the alterations and for heightened sensitivity to their interrelationships. His essay thus began to paint a comparatively comprehensive portrait of process as a system. He painted a clearer picture of the modifications' connections while encouraging procedural to view the whole of modern process as more than the sum of its discrete parts.
This article explores a number of significant issues that The Misunderstood Consequences of Modern Civil Process expressly and implicitly raises. My response primarily elaborates the essay's perceptive depiction of authority's accretion in courts of the first instance by emphasizing very recent procedural developments, such as implementation of the Civil Justice Reform Act (CJRA) of 1990 and the 1993 amendments in the Federal Rules of Civil Procedure. Perhaps most striking about Professor Yeazell's essay is that the newest aspects of civil process, which he examined the least, most compellingly illustrate his ideas. Indeed, the CJRA, in vesting courts of original jurisdiction with the power not only to apply but also to make relevant procedures, additionally increases district court authority and explicitly sanctifies that enhancement as a positive value.
This article initially summarizes The Misunderstood Consequences of Modern Civil Process. The article then descriptively analyzes modern civil process, expanding Professor Yeazell's account and concentrating on power's accumulation in courts of the first instance. Focus is placed on several phenomena, namely the local proliferation of civil procedures, the growth of judicial discretion, and the mounting emphasis on pretrial and managerial judging, which have facilitated authority's accretion. This response next evaluates important implications of modern process and concludes with suggestions for treating the changed procedural circumstances.
Carl Tobias, More Modern Civil Procedure, 56 U. Pitt. L. Rev. 801 (1995)