The authors of several papers in this Symposium have justifiably criticized the essay that former Vice President Dan Quayle published in Volume 41 of The American University Law Review. Many knowledgeable observers of the civil justice system have leveled equally legitimate criticism at civil justice reform initiatives that the Bush administration instituted. Questionable data, arguable policy, or overheated political rhetoric supported certain aspects of the Vice President's paper, as well as most of the proposals developed by the Competitiveness Council that the Vice President chaired and numerous efforts of the Republican administration in the area of civil justice reform.
One endeavor, involving executive branch civil justice reform in the field of federal civil procedure, apparently was less problematic. That effort, which aimed to "facilitate the just and efficient resolution of civil claims" involving the United States Government, imposed a number of requirements on government attorneys who participate in civil litigation. This is a Bush administration initiative that Vice President Quayle mentioned in his essay and that the Clinton administration must rigorously analyze.
The Bush administration briefly experimented with civil justice reform in the executive branch. President Bush promulgated Executive Order 12,778 on October 23, 1991, and the order became effective in January 1992. That same month, the United States Department of Justice issued preliminary guidance that was intended to assist federal agencies and government lawyers in effectuating the Executive order. Nonetheless, the Department only finalized those guidelines in the waning days of the Bush administration. Although the Republican administration did not fully implement executive branch civil justice reform, the Executive order and the accompanying guidance seemed well considered and prescribed some procedures that apparently would be efficacious in reducing expense and delay, the ostensible purpose of civil justice reform. Moreover, the order and the guidelines will be in effect until President Clinton modifies them, so that his administration must decide how to treat this nascent reform.
The factors above mean that civil justice reform in the executive branch warrants systematic assessment to ascertain whether the Clinton administration should continue experimenting with the concept and, if so, how the administration can most effectively implement the reform. This Article undertakes that effort. The Article first traces the origins and development of civil justice reform in the area of federal civil procedure, emphasizing the Bush administration's attempts to institute executive branch reform. The Article then critically evaluates the Bush administration initiative and finds it sufficiently promising to warrant additional effectuation and ongoing experimentation, particularly if the endeavor is vigorously implemented, rigorously evaluated, and recalibrated. The third Part of this Article affords numerous suggestions that the Clinton administration should follow to effectuate, and to continue experimenting with, civil justice reform in the executive branch.
Carl Tobias, Executive Branch Civil Justice Reform, 42 Am. U. L. Rev. 1521 (1993)