Professor Laurens Walker's The End of the New Deal and the Federal Rules of Civil Procedure, 82 Iowa L. Rev.1269 (1997) (New Deal's End), is a thought-provoking evaluation of the relationship between the New Deal's conclusion and modem civil process. Professor Walker canvasses a series of recent, puzzling changes which "present the most serious challenge to the procedural status quo since the adoption of the original Federal Rules in 1938." The author finds that the New Deal's demise and the rejection of that regime's reliance on experts, policies of centralized federal decisionmaking, and establishment of the national government as an instrument for social reform best explain these modifications. Professor Walker admonishes proceduralists to accept inevitable political change and to consider it when planning reform. Asserting that "[m]ajor change in political structure and practice requires bold action," the writer calls for the creation of a national study group to undertake a searching review of civil process and to craft innovative remedies for present difficulties. Professor Walker provocatively suggests as a fruitful source of solutions recent welfare reform, from which he derives purportedly promising concepts: waivers of federal strictures, enhanced local control, mandatory research, and incentives for better management.
New Deal' s End is the latest of Professor Walker's concerted efforts to improve procedural revision at the national level and in the ninety-four federal district courts. He has scrutinized the processes for amending federal and local civil procedures and devised constructive recommendations. The author has attacked the processes' pressure points while urging relevant decisionmakers, particularly Congress and federal judges, to employ the tools of controlled experimentation, administrative law, and economic analysis in altering procedure. Professor Walker's decade of careful work on these processes spans the very period when procedure has become increasingly balkanized. Indeed, that growing fragmentation apparently prompted the writer's abandonment of "less drastic ways to improve the current system" which he had previously championed. The above propositions mean that New Deal' s End deserves a response. This Essay undertakes that effort.
Carl Tobias, Fin-De-Siecle Federal Civil Procedure, 51 Fla. L. Rev. 641 (1999)