The Contract With America figured prominently in the Republican Party's victories in the 1994 congressional races. During the opening days of the 104th Congress, therefore, approximately one hundred sponsors introduced the Common Sense Legal Refonns Act (CSLRA), which embodied several measures that comprised the Contract's ninth precept. The only constituent of this package of proposals which actually became law was the Private Securities Litigation Refonn Act (PSLRA). Both Houses of Congress did pass products liability reform bills but lacked the requisite votes to override President Bill Clinton's veto. The House of Representatives approved the Attorney Accountability Act (AAA), which would have modified the substantial 1993 amendment in Federal Rule of Civil Procedure 11 governing sanctions; Federal Rule 68 covering offers of judgment; and an evidentiary requirement that the Supreme Court interpreted in 1993.
The Republican Party captured additional seats in the Senate and retained a slight majority in the House of Representatives in the 1996 elections; however, the Grand Old Party has insufficient votes to override vetoes which might be exercised by President Clinton, who won re-election. It was, thus, unclear that Republicans would reintroduce a products liability bill or the AAA, or would offer other substantive or procedural reform measures. Although the leaders of both political parties made conciliatory overtures immediately after the 1996 elections, Republican members introduced several important legal reform proposals at the outset of the 105th Congress. These measures would individually and synergistically have important impacts on considerable federal civil litigation and the civil justice system. For example, the proposals' sponsors apparently introduced the measures with minimal understanding of how they could affect several significant, continuing public and private reform efforts, most notably the Civil Justice Reform Act (CJRA) of 1990 which is scheduled to sunset in 1997.
The reforms' passage, therefore, might have numerous adverse impacts, such as further fragmenting the already fractured character of federal civil procedure. Some of the proposals' strictures could even have effects opposite froni those which sponsors intended and those expressly prescribed in the CJRA by, for instance, increasing cost and delay in civil litigation. The new measures, thus, may be symptomatic of much that is presently wrong with the civil justice process and might exacerbate certain problems. Notwithstanding several of the complications enumerated, Congress's composition apparently affords opportunities for bipartisan cooperation which could lead to the adoption of legal reforms. The above factors mean that the recently introduced proposals deserve analysis. This Article undertakes that effort.
This Article's first section describes the background of the new legal reforms, emphasizing those ongoing public and private initiatives with which important aspects of the recent measures may conflict. The second section descriptively evaluates the substantive and procedural provisions of the PSLRA and the latest proposals and examines the detrimental impacts which these strictures may have on continuing reform efforts, particular cases, and the civil justice system. This section determines· that numerous requirements in the measures alone and together could adversely affect plaintiffs and parties with limited resources or power, such as civil rights litigants by, for example, restricting their access to federal court. The proposals individually and in combination might also have deleterious impacts on the civil justice process. They may conflict with ongoing reform endeavors, and increase complexity and disuniformity in federal civil procedure, which will correspondingly impose greater expense and delay. The third section, accordingly, offers recommendations for the future, which principally involve attempts to resolve problems that the recent measures present. These suggestions primarily call upon Congress to reject the AAA and the products liability proposal or delay passage of their prescriptions which would have the disadvantageous effects delineated above while rescinding, or discontinuing implementation of, the PSLRA's provisions that are having those impacts. If Congress believes that the two new refonns' effectuation will not have, and that the PSLRA has not had, detrimental effects on continuing initiatives, considerable civil litigation, or the civil justice system, or if it decides to proceed for different reasons, Congress must at least evaluate other possibilities. For instance, Congress should attempt to harmonize the proposals' requirements with ongoing reform efforts, namely the CJRA which may expire soon.
Carl Tobias, Reforming Common Sense Legal Reforms, 30 Conn. L. Rev. 537 (1998)