August 01, 2012

Rulemaking: An Instinct for the Capillary

Gregory P. Joseph

Download a printable PDF of this article. (membership required).

It used to be that every year, when my new West rules pamphlet arrived, I’d take the old one home for reference. I stopped doing that several years ago, though. Not because of the Internet, but because the civil rules started changing so fast that last year’s pamphlet was no longer reliable.

For practicing lawyers (not to mention trial judges), relentless rulemaking is relentlessly inconvenient. Amendments to the Federal Rules of Civil Procedure introduce transaction costs—motions, letters, doubled research when subparts are renumbered—so they ought to be important. Sometimes they are. When the rules were amended in 2010 to re-confer work-product protection on draft expert reports, when the “reasonably accessible” standard was introduced for electronic discovery in 2006, when interlocutory appeals of class certification were inaugurated in 1998, and when mandatory Rule 11 sanctions were switched to permissive in 1993, each was a striking improvement.

Premium Content For:
  • Litigation Section
Join - Now