Monday, June 16, 2008

Marcus on Procedural Reform

Rick Marcus has published two pieces on procedural reform. The most recent is called "Modes of Procedural Reform," 31 Hastings Int. & Comp. Law Rev. 157 (2008)(available from HeinOnline). Rick offers a typology of reform modes (e.g., judicially-driven, legislative, expert-driven, borrwed from abroad, top-down vs. bottom-up). He then examines the actual history of American procedural reform and concludes that the particular mode of reform employed has had less than a profound effect on success. In the end, after looking at other countries' experiences with procedural reform as well, Rick suggests we may be left with a "grab bag" of factors determining prospects for success.

The other piece is called "Confessions of a Federal 'Bureaucrat': The Possibilities of Perfecting Procedural Reform," 35 Western State Univ. L. Rev. 103 (2007)(available from HeinOnline). This piece comments on a paper by Glenn Koppel in which Koppel argues that the "Golden Age" of federal procedural rulemaking is over, and that a multistate apparatus ought to be created to develop new procedures in state courts. Rick doubts the plausibility of this proposal and further suggests that federal rulemaking may still have some utility -- as is illustrated by the states having largely followed the federal lead on E-discovery.

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