Recovering Access: Rethinking the Structure of Federal Civil Rulemaking

Access to the justice system, which I broadly define as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. In this article, I examine how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how to interpret this three-part directive. I argue that one interpretive principle should be access to the justice system. Examining the history, I demonstrate that proponents of the Rules Enabling Act and court-based rulemaking envisioned and designed the rules with access firmly in mind. Indeed, although access was not the only concern, it was on equal footing with competing concerns, such as systemic efficiency. Over time, as the perception of a litigation explosion has created political pressure to reduce access to the justice system, rulemakers have responded by creating rules that do just that. I argue that access should be restored to its original status as a co-equal principle of civil rulemaking and that one way to do so is to modify the structure of the rulemaking process. Under the current institutional structure, the rulemaking body is more attuned to a view of litigation intent on reducing access. I offer a spectrum of structural reforms that have the potential to reduce this bias. These proposals include modifying the Committee's composition to be more representative of litigants and passing legislation that mandates access will be considered in the rulemaking process.