At the May 4, 1994 regular meeting of the Judicial Council of the United States Courts for the Sixth Circuit, the Council voted to "suspend further review of local rules until it receives further guidance from Congress, the Judicial Conference of the United States or by case law on the question of whether provisions of the Civil Justice Reform Act take precedence over the Federal Rules of Civil Procedure. " By so doing, the Council was ostensibly discharging responsibilities assigned to it by the Judicial Improvements and Access to Justice Act (JIA) of 1988. The JIA requires that every circuit council periodically survey local rules adopted by the district courts within the council's purview for consistency with the Federal Rules of Civil Procedure and Acts of Congress, and it authorizes each council to modify or abrogate conflicting local directives.
The Sixth Circuit Judicial Council's decision may seem inconsequential in the 200-year history of the federal courts. However, the vote is a telling comment on the confused state of civil procedure and the need to ameliorate that situation. I wish to employ this apparently innocuous story as a starting point for exploring civil procedure's current condition and for showing how the Council might resume its review with an approach to which its members seemed oblivious when voting.
Several reasons explain the decision of the Sixth Circuit Judicial Council to postpone review. For example, complexity and fragmentation characterize modern civil procedure. More specifically, Congress did not state how councils should harmonize the JIA and the Civil Justice Reform Act of 1990 (CJRA). The Sixth Circuit Council also seemed to want a consensus before resolving a delicate, close question of authority and was justifiably concerned about spending scarce resources on an effort that members believed the CJRA could moot.
The Council prematurely and unnecessarily suspended review, however. It can circumvent the conflict that Council members perceived between the JIA and the CJRA and thereby expeditiously fulfill most of its review obligations. The issue warrants analysis because all twelve regional circuit judicial councils must confront the same question that the Sixth Circuit Judicial Council faced when complying with its duties-responsibilities that few councils have fully satisfied. This Article undertakes that analysis.
The second part of the Article analyzes the national and Sixth Circuit developments in civil procedure that led the Sixth Circuit Judicial Council to discontinue review. The third part offers suggestions for addressing concerns that underlay the Council's postponement determination and for resuming the review mandated and discharging the obligations imposed.
Carl Tobias, A Sixth Circuit Story, 23 Fla. St. U.L. Rev. 983 (1996)