WHO WILL WRITE YOUR RULES? YOUR STATE COURT OR THE FEDERAL JUDICIARY? 24th Annual Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. WHO WILL WRITE YOUR RULES? YOUR STATE COURT OR THE FEDERAL JUDICIARY? 24th Annual Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The Endower, Habush Habush & Rottier S.C., and the Forum underwriters have no control over the content of the Forum, the makeup of faculty or attendees, the placement of information in Forum materials, or the editorial content of the 2016 Forum Report. Library of Congress Control Number Pending ISBN: 978-0-933067-26-4 ©2017 Pound Civil Justice Institute We are all citizens, and should be equal under the law. So there should not be separate sets of rules for Walmart and for individuals. —A judge attending the 2016 Forum Predictability should not be espoused at the expense of fairness. —A judge attending the 2016 Forum I don’t think there is a counterrevolution against litigation. There is a counterrevolution against trials. —A judge attending the 2016 Forum TABLE OF CONTENTS FOREWORD ............................................................................................................................................................................ 1 INTRODUCTION ................................................................................................................................................................... 3 MORNING PAPER, ORAL REMARKS, AND COMMENTS .............................................................................................. 5 “Rulemaking and the Counterrevolution Against Federal Litigation: Discovery” ................................................................. 5 Professor Stephen B. Burbank, University of Pennsylvania Law School Professor Sean Farhang, University of California, Berkeley, School of Law Oral Remarks by Professor Farhang ........................................................................................................................................... 25 Comments by Panelists, Response by Professor Farhang, Questions and Comments from the Floor .............................. 31 LUNCHEON ADDRESS ....................................................................................................................................................... 47 “The Federal Rules of Civil Procedure: Where Have They Gone?” Professor Arthur Miller, New York University School of Law AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ....................................................................................... 53 “Should State Courts Follow the Federal System in Court Rulemaking and Procedural Practice?” .................................. 53 Professor Stephen N. Subrin, Northeastern University School of Law Professor Thomas O. Main, William S. Boyd College of Law, University of Nevada, Las Vegas Oral Remarks by Professor Subrin ............................................................................................................................................... 81 Comments by Panelists, Response by Professor Main .............................................................................................................. 84 CLOSING PLENARY ............................................................................................................................................................ 99 THE JUDGES’ COMMENTS ............................................................................................................................................. 101 POINTS OF CONVERGENCE .......................................................................................................................................... 125 APPENDICES ...................................................................................................................................................................... 131 Faculty Biographies ...................................................................................................................................................................... 131 Judicial Participants ..................................................................................................................................................................... 139 2016 Forum Underwriters .......................................................................................................................................................... 142 About the Pound Civil Justice Institute ..................................................................................................................................... 143 Pound Civil Justice Institute Officers and Trustees, 2015-16 ................................................................................................. 145 Papers of the Pound Civil Justice Institute ................................................................................................................................ 146 WHO WILL WRITE YOUR RULES—YOUR STATE COURT OR THE FEDERAL JUDICIARY? i FOREWORD The Pound Civil Justice Institute’s twenty-fourth Forum for State Appellate Court Judges was held on July 23, 2016, in Los Angeles, California. As with all of our past forums, it was both enjoyable and thought provoking. In the Forum setting, judges, practicing attorneys, and legal scholars were able to consider the crucial issue of transparency in judicial proceedings, and the impact on the rule of law of the increasing instances of non-public dispute resolution. The Pound Civil Justice Institute recognizes that the state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue in which judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is always fruitful. Our attendees always bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints always emerges in our Forum reports. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging from the court funding crisis, to the decline of jury trial, to separation of powers, forced arbitration, and judicial transparency. We are proud of our Forums, and are gratified by the increasing attendance we have experienced since their inception, as well as by the very positive comments we have received from judges who have attended in the past. A full listing of the prior Forums and their content is provided in an appendix to this report, and their reports and papers—along with most of our other publications—are available for free download at our website: www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2016 Forum for State Appellate Court Judges: • Professors Steve Burbank, Sean Farhang, Steve Subrin, and Thom Main, who wrote the papers that started our discussions; • our lunch speaker, Professor Arthur R. Miller of New York University School of Law, for a fascinating discussion of federal rulemaking over the years; • our panelists—Jennie Lee Anderson, Hon. Elizabeth Gleicher, Hon. Henry Kantor, John Kuppens, Donna Melby, Professor Patricia W. Hatamyar Moore, Elizabeth Stein, and Dean Michael Wolfe; • the moderators of our small-group discussions—Linda Atkinson, Leslie Brueckner, Mark Chalos, Kathryn Clarke, Annika Martin, Shawn McCann, Andre Mura, Valerie Nannery, Wayne Parsons, Gale Pearson, Jim Rooks, and John Vail; • and the Pound Civil Justice Institute’s dedicated and talented staff—Mary Collishaw, our executive director, and Jim Rooks, our consultant and Forum reporter—for their diligence and professionalism in organizing and administering the 2016 Judges Forum. WHO WILL WRITE YOUR RULES—YOUR STATE COURT OR THE FEDERAL JUDICIARY? 1 It goes without saying that we appreciated the attendance of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your consideration of matters relating to court rulemaking, the rule of law, and trial by jury. Kathleen Flynn Peterson President, Pound Civil Justice Institute, 2015-16 2 WHO WILL WRITE YOUR RULES—YOUR STATE COURT OR THE FEDERAL JUDICIARY? INTRODUCTION On July 23, 2016 in Los Angeles, California, 105 judges, representing 38 states and the District of Columbia, took part in the Pound Civil Justice Institute’s twenty-fourth annual Forum for State Appellate Court Judges. The judges examined the topic, “Who Will Write Your Rules—Your State Court or the Federal Judiciary?” The inquiry was prompted by the U.S. federal courts’ 2015 amendment to Rule 26(b)(1) of the Federal Rules of Civil Procedure, which changed the previous description of what is discoverable in civil litigation: Rule 26. Duty to Disclose; General Provisions Governing Discovery * * * (b)