Law Commons^™

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

The Law Is Not The Case: Incorporating Empirical Methods Into The Culture Of Case Analysis, Kay L. Levine

Faculty Articles

While I consider case analysis in the context of cultural defense jurisprudence, this Essay should be regarded as a case study of a more endemic problem in legal scholarship. In tackling such an area, my goal is not to overthrow centuries of legal analysis, but rather to explore how we, as legal scholars, might use social science techniques to more systematically investigate, document, analyze, and predict the state of a particular comer of the legal universe.

The argument proceeds in two parts. Part II considers empirical approaches to the question raised by Lee: how might we ascertain the relationship between …