Comment on Burbank and Silberman

Abstract

The paper focuses on reform in the federal courts. That is not inappropriate since historically the federal courts have been the lead dog on the sled of reform. One should have in mind, however, that some 98% of all civil litigation in the United States takes place in the state courts. And state court systems tend to look less to the federal courts for leadership in reform now than they did in the past. The reason is that civil justice reform has become politicized and contentious. There was a time when the federal rules were drafted and revised by what could be called a group of wise men-lawyers and judges above the fray who looked dispassionately at the justice process and sought out what was best for it. But rule making is no longer an Olympian exercise and the rulemakers are no longer viewed as omniscient and detached. Much is at stake for particular litigation interests in the shaping of rules of procedure, and with the democratization of the rule making process, those interests have access and work to influence it. Special interests of various sortsmanufacturers, small business, insurance companies, civil rights lawyers, class action lawyers, personal injury lawyers, commercial lawyers and, not to be ignored, the judges themselves, and even Congress-confront each other. The product that emerges will not necessarily be a model for the highest and best form of administration of justice. Meanwhile states are pursuing their own initiatives: California, for example, has successfully implemented a fast track system, and