Federal civil procedure is now byzantine. Lawyers and parties face, and federal judges apply, a bewildering panorama of requirements. There are strictures in the Federal Rules of Civil Procedure as well as Title 28 of the United States Code and dozens of substantive statutes. A stunning array of local measures-including local rules; general, special, and scheduling orders; individual-judge practices; and mechanisms that courts adopted under the Civil Justice Reform Act (CJRA) of 1990 to reduce cost and delay-also govern cases in all ninety-four districts. Many of the provisions· are inconsistent or duplicative, while a significant percentage are difficult to discover, master, and satisfy. These phenomena have apparently undermined the federal rules' core precepts, such as uniformity, simplicity, and economical, expeditious dispute resolution, and have eroded important process values, namely court access. The developments mean that federal practice is more fractured than at any time since the Supreme Court prescribed the original federal rules during 1938.
This balkanization of federal civil procedure was not inevitable. Indeed, over a decade ago, the Court and Congress instituted actions to treat growing fragmentation, particularly the proliferation of conflicting local strictures. For example, the 1985 amendment in Federal Rule of Civil Procedure 83 and the Judicial Improvements and Access to Justice Act (JIA) of 1988 required that the Judicial Conference of the United States, circuit judicial councils, federal appellate and district courts, and specific judges periodically review local procedures for consistency with the federal rules and legislation and abrogate or modify violative provisions. Few institutions or people have fulfilled the responsibilities imposed principally because Congress appropriated no funding and adopted the CJRA, which essentially suspended implementation of the duties. This truncated effectuation and experimentation with mechanisms under the 1990 statute, some of which contravene the federal rules, United States Code provisions, and requirements in the remaining ninety-three districts, have led to increasingly fractured civil practice. Now that the date on which the CJRA was scheduled to expire has passed and federal litigation has become more arcane than ever, it is critical to analyze these developments in contemporary civil disputing. This Article undertakes that effort.
The first Part traces the background of local procedural proliferation, which gradually expanded after the promulgation of the initial federal rules and has accelerated since 1980. The exponential increase in local strictures, many of which were conflicting, prompted Supreme Court revision of Rule 83 during 1985 and 1995, as well as legislative enactment of the JIA in 1988. The Court and Congress clearly intended to limit inconsistent and redundant local requirements which were complicating federal practice. The second Part evaluates implementation of the mandates in Rule 83 and in the 1988 statute and ascertains that most entities and persons responsible for discharging the obligations have not performed them. I then assess the reasons for incomplete compliance, which were substantially attributable to resource deficiencies and to the 1990 CJRA's discontinued effectuation of the relevant commands in Rule 83 and the 1988 JIA, and analyze the consequences of limited implementation.
The third Part offers suggestions for the future. First, Congress should definitely state that the CJRA has expired and that districts and judges must abolish all conflicting and repetitive procedures adopted under the statute. The institutions and individuals charged with effectuating the mandates related to local proliferation in Rule 83 and the JIA should concomitantly reinvigorate and thoroughly implement them. For instance, district courts and particular judges could eliminate existing, and refrain from the prescription of, new, local provisions which are inconsistent or redundant. The circuit councils might concomitantly undertake comprehensive review of local strictures and abrogate or change those found to conflict with or duplicate federal rules or legislation. As the twenty-first century opens, these suggestions should restrict proliferation and the fragmentation of modem federal court practice, promote the restoration of a uniform, simple procedural regime, and decrease expense and delay in civil litigation.
Carl Tobias, Local Federal Civil Procedure for the Twenty-First Century, 77 Notre Dame L. Rev. 533 (2002)