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IN NOVEMBER 2021, SOME 30 JUDGES AND SCHOLARS GATHERED in Santa Monica, Calif., to discuss the prospects for an emerging era of civil case management reform. The participants included proponents of reform as well as skeptics, but a day of reviewing history, studying examples, and candid give-and-take produced a surprising degree of consensus. Case management reform is both important and feasible, we generally agreed, but it is far more likely to succeed if it has some crucial ingredients. Without speaking for any of the participants, we suggest the following six principles for an empirically guided process to improve civil justice.
The impetus for new case management strategies should come from judges. In 1990, Congress passed the Civil Justice Reform Act, which sought to "simplify" federal civil case management in a number of ways. From the perspective of many judges, the reforms - which had been developed with little judicial input - were not well-suited to address the problems they perceived. Without either the substantive or political benefits of broad judicial buy-in, relatively few judges implemented the reforms in the way the architects had envisioned. The entire effort was widely viewed as unsuccessful. But in recent years, a second generation of reformers - mostly judges - has taken a different approach, developing reform ideas organically and starting with small-scale efforts that are (in most instances) subsequently evaluated by scholars. This approach has won a growing number of converts to the cause.
Case management reforms should be carefully evaluated. Most judges, in our experience, are interested in considering reforms, but they want to see clear and convincing evidence about the effects of reform. This...