Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process

The federal rules of civil procedure were intended by their drafters to be a model for states to adopt, thereby promoting national procedural uniformity. From 1949 through 1975, federal procedure exerted a powerful influence over state civil procedure as the number of replica states grew from four to twenty-three. The golden age of the federal rules is over. The initiative in procedural reform has passed to the states, which have been increasingly assertive in adopting rules that deviate from the federal model, particularly in the area of discovery. This Article proposes that the next great wave of procedural reform in American civil justice emanate from the states themselves in the form of a national code of state civil procedure. The willingness of states to chart their own paths toward civil justice reform presents both a problem and an opportunity. The problem-especially for parties who litigate on a national scale-is a crazy quilt of procedures that promote forum shopping, which can unfairly affect substantive outcomes. The ferment of experimentation among state jurisdictions, however, also presents an opportunity-the chance to produce a better national civil procedure than the Federal Rules now afford and to create a collaborative state rule-making process, grounded in a system of controlled rules experimentation, which may serve as a model for federal rule-makers. A central thesis of the Article is that national procedural uniformity among state courts remains a desirable, viable, and achievable goal despite the failure of the top-down federal-rules-model approach to achieve that goal. The momentum for developing uniform state procedural rules must, however, originate with the states themselves. The states have already manifested the energy required to fuel this momentum through their willingness to experiment-albeit haphazardly and largely uninformed by empirical research - with a wide variety of discovery reforms. The Article urges that this energy be channeled, nurtured, and sustained through an institutionalized national mechanism that promotes cooperation and collaboration among state judicial systems in experimenting with procedural change and in formulating uniform rules of state civil procedure informed by the resulting empirical data. Because the states are increasingly unwilling to follow the federal lead, they need to fashion a vigorous rule-making process that supports-on a national level-their independent rule-making role, a process superior to that of the Federal Rules. By pooling their rule-making resources, state judicial systems can assume an authentic and sustainable leadership role in civil procedure reform responsive to their needs. I. INTRODUCTION There is a sense of deja vu to the vision of a uniform body of state procedural law applicable in every state court throughout the nation. Swift v. Tyson's1 dream of a nationally uniform body of state substantive common law2 that mirrored an evolving body of uniform federal common law never materialized because state courts refused to defer to federal common law, which was applied only in federal court.3 Swift itself was overturned in 1938 by the Supreme Court's ruling in Erie Railroad v. Tompkins4 that federal courts must defer to the substantive lawmaking authority of state courts. But almost simultaneously with the demise of Swift, the dream of uniform state common law was reincarnated into a vision of uniform state procedural law through the enactment of the Rules Enabling Act (REA) and the adoption of the Federal Rules of Civil Procedure. The Federal Rules prescribed a uniform code of federal procedure applicable in every federal district court, replacing the hodgepodge of federal practice that had developed under the Conformity Act of 1872.5 Inter-federal district court uniformity was premised on the ideal that lawyer could go to any federal court, and be secure that she could understand and master the procedure required, since that procedure would be at once uniform and simple. …