Authorized Managerialism Under the Federal Rules— and the Extent of Convergence With Civil-Law Judging

Authors

Thomas D. Rowe Jr., Duke Law SchoolFollow

Document Type

Article

Publication Date

2007

Abstract

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the "adversarial" model of the judge as passive referee and makes us more like supposedly "inquisitorial" civil-law systems. To the extent that civil-law judges generally exercise considerable initiative and control in shaping the course of civil proceedings (which they appear to do in some civil-law systems but less so or very little in others), greater managerialism in America does appear to bring about a significant degree of convergence. And greater promotion of settlement and alternative dispute resolution by American managerial judges also seems to bring us closer to practice in at least some prominent civil-law systems. But a defining feature of systems that truly deserve the label "inquisitorial" is judicial primacy in fact-gathering, found in some--but again, not all--civil-law systems. On this measure American managerialism largely does not put the judge in that role, so that statements appearing to see our managerialism as converging with "inquisitorial" systems are correct only to the extent that our practices may be becoming somewhat more like the non-inquisitorial aspects of civil-law judging. Nor should the label "inquisitorial" obscure the very considerable extent of party control that exists in civil-law as well as "adversarial" common-law systems. And, of course, much American pretrial managerialism is about discovery, of which civil-law systems (and other common-law ones as well) have considerably less than we do. The convergence effected by greater American pretrial managerialism thus is significant, but in limited respects, and needs to be addressed with precision. In particular, comparisons should avoid implying that we are yet in any major way moving toward the model of judge as truly "inquisitorial" investigator with lead responsibility for ferreting out the facts relevant to the parties' dispute.

Citation

Thomas D. Rowe Jr., Authorized Managerialism Under the Federal Rules— and the Extent of Convergence With Civil-Law Judging, 36 Southwestern University Law Review 191-213 (2007)

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