[*] Professor, University of Montana. B.A., 1968, Duke University; LL.B., 1972, University of Virginia. I wish to thank Peggy Sanner for valuable suggestions, Cecelia Palmer and Charlotte Wilmerton for technical support, as well as Ann and Tom Boone and the Harris Trust for generous, continuing support. I am a member of the Civil Justice Reform Act Advisory Group for the United States District Court for the District of Montana and of the District Local Rules Review Committee of the Ninth Circuit Judicial Council; however, the views expressed here and errors that remain are mine. Return to text.

[1] Judicial Council of Sixth Circuit, U.S. Ct. Appeals, Minutes of Meeting 3-4 (May 4, 1994) (on file with Office of Cir. Exec.) [hereinafter Minutes]. Return to text.

[2] See 28 U.S.C. §§ 332(d)(4), 2701(a) (1988 & Supp. V 1993). Return to text.

[3] See id. Federal Rule of Civil Procedure 83 assigns similar responsibilities. See infra notes 8-9, 14-15 and accompanying text. Rule 83's 1995 amendment also proscribes the adoption of duplicative local procedures. See Amendment to Federal Rule of Civil Procedure 83, reprinted in 160 F.R.D. 149, 161 (1995). I emphasize inconsistent procedures because they are more problematic than duplicative procedures and the JIA because it is broader than Rule 83. Return to text.

[4] See, e.g., Stephen N. Subrin, Federal Rules, Local Rules and State Rules: Uniformity, Divergence and Emerging Patterns, 137 U. PA. L. REV. 1999, 2020-26 (1989); Carl Tobias, More Modern Civil Process, 56 U. PITT. L. REV. 803, 807-09 (1995). Return to text.

[5] See 28 U.S.C. §§ 2071-74 (1988 & Supp. V 1993). See generally Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982); Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 943-61 (1987). Return to text.

[6] See 28 U.S.C. §§ 2071-74 (1988 & Supp. V 1993); see also Carl Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 CORNELL L. REV. 270, 272-77 (1989) [hereinafter Tobias, Public Law Litigation]. See generally Joseph R. Biden, Jr., Congress and the Courts: Our Mutual Obligation, 46 STAN. L. REV. 1285, 1289 (1994); Burbank, supra note 5. Return to text.

[7] See 28 U.S.C. § 2071(a) (1988 & Supp. 1993). See generally Robert E. Keeton, The Function of Local Rules and the Tension with Uniformity, 50 U. PITT. L. REV. 853, 865-67, 870-1 (1989). Return to text.

[8] See FED. R. CIV. P. 83; see also Subrin, supra note 4, at 2016-19. See generally Tobias, Public Law Litigation, supra note 6, at 272-77. Return to text.

[9] See FED. R. CIV. P. 83; FED. R. CIV. 83, 1985 advisory comm. note. See generally Keeton, supra note 7; Subrin, supra note 4, at 2011-16. Return to text.

[10] See COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE UNITED STATES, REPORT OF THE LOCAL RULES PROJECT: LOCAL RULES ON CIVIL PRACTICE 1 (1989) [hereinafter REPORT OF LOCAL RULES PROJECT]; see also Daniel R. Coquillette et al., The Role of Local Rules, 75 A.B.A. J. 62 (1989) (summarizing Local Rules Project). See generally Carl Tobias, Improving the 1988 and 1990 Judicial Improvements Acts, 46 STAN. L. REV. 1589, 1596-97 (1994) [hereinafter Tobias, Improving]; Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L. J. 1393, 1397-99 (1992) [hereinafter Tobias, Balkanization]. Return to text.

[11] See REPORT OF THE LOCAL RULES PROJECT, supra note 10, at 1; see also Telephone Interview with Mary P. Squiers, Project Director of Local Rules Project (Feb. 21, 1992) (notes on file with author); Telephone Interview with Stephen N. Subrin, Consultant to the Local Rules Project (Feb. 15, 1992) (notes on file with author). Moreover, a number of individual judges applied numerous unwritten procedures. See Carl Tobias, Suggestions for Circuit Court Review of Local Procedures, 52 WASH. & LEE L. REV. 359, 360 n.2 (1995) [hereinafter Suggestions]. Return to text.

[12] See 28 U.S.C. § 2071(a) (1988 & Supp. V 1993); FED. R. CIV. P. 83; see also Subrin, supra note 4, at 2020-26. See generally Coquillette et al., supra note 10, at 62-65. Return to text.

[13] The Judicial Conference commissioned the Local Rules Project to analyze the difficulties and, after receiving the Project's Report, it issued an order requesting that districts conform local procedures to the federal rules. See Tobias, Improving, supra note 10, at 1597; Tobias, Balkanization, supra note 10, at 1399. Return to text.

[14] See FED. R. CIV. P. 83; see also FED. R. CIV. P. 83, 1985 advisory comm. note. See generally David M. Roberts, The Myth of Uniformity in Federal Civil Procedure: Federal Civil Rule 83 and District Court Local Rulemaking Powers, 8 U. PUGET SOUND L. REV. 537 (1985). Return to text.

[15] See FED. R. CIV. P. 83, 1985 advisory comm. note; see also supra note 3 (discussing Rule 83's 1995 amendment); see generally Tobias, Improving, supra note 10, at 1596. Return to text.

[16] Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102 Stat. 4642 (1988) (codified at 28 U.S.C. §§ 332(d)(4), 2071-2074 (1988 & Supp. V 1993)). See generally Linda S. Mullenix, Hope over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795 (1991). Return to text.

[17] See Tobias, Improving, supra note 10, at 1599-1601. See generally Paul D. Carrington, Learning from the Rule 26 Brouhaha: Our Courts Need Real Friends, 156 F.R.D. 295, 300-01 (1994). Return to text.

[18] See 28 U.S.C. §§ 332(d)(4), 2071(a) (1988 & Supp. V 1993). See generally Tobias, Balkanization, supra note 10, at 1401. The JIA, therefore, placed an ongoing responsibility on councils to review local procedures that existed on the statute's December 1, 1988 effective date as well as those subsequently adopted. Return to text.

[19] See 28 U.S.C. § 2071 notes (1988 & Supp. V 1993). See generally Myron J. Bromberg & Jonathan M. Korn, Individual Judges' Practices: An Inadvertent Subversion of the Federal Rules of Civil Procedure, 68 ST. JOHN'S L. REV. 1 (1994). The statute made the process exclusive to prevent districts and judges from avoiding it by describing local procedures as something other than local rules. See 28 U.S.C. § 2071(f) (1988 & Supp. V 1993). See generally Tobias, Improving, supra note 10, at 1600. Return to text.

[20] Circuit judges might have deferred to district judges on councils who know more about civil litigation in trial courts and within each circuit's districts. District judges may have been reluctant to scrutinize or modify procedures that the judges might apply in their own districts or could have lacked sufficient familiarity with the local conditions in the districts whose procedures they were assessing to alter those requirements found to conflict. Some judges, out of courtesy or respect for individuals who occupy the identical position in the judicial hierarchy, might have deferentially evaluated procedures. Local procedural review is also very sensitive because many district judges strongly defend their prerogatives to apply local procedures. See Tobias, Suggestions, supra note 11, at 363-64; Tobias, Balkanization, supra note 10 at 1406-07. In the remainder of this subsection, I rely substantially on interviews with many individuals who are familiar with councils' implementation efforts, on numerous council documents, and on Tobias, Suggestions, supra note 11. Return to text.

[21] See Tobias, Improving, supra note 10, at 1623-7. Return to text.

[22] See 28 U.S.C. § 473 (1988 & Supp. V 1993); see also Tobias, Improving, supra note 10, at 1623-27; Tobias, Balkanization, supra note 10, at 1414-22. Return to text.

[23] Compare U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN 10 (1991) [hereinafter DELAY REDUCTION PLAN] with FED. R. CIV. P. 68; see also Friends of the Earth v. Chevron, 885 F. Supp. 934 (E.D. Tex. 1995). See generally Tobias, Improving, supra note 10, at 1620. Return to text.

[24] Compare U.S. DISTRICT COURT FOR THE DISTRICT OF MONTANA, CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN 3-4 (1991) with 28 U.S.C. § 636 (1988 & Supp. V 1993). See generally Tobias, Balkanization, supra note 10, at 1417; Carl Tobias, The Montana Federal Civil Justice Plan, 53 MONT. L. REV. 91, 93 & n.9 (1992). Return to text.

[25] See 28 U.S.C. § 474 (Supp. V 1993); see generally Tobias, Balkanization, supra note 10, at 1406-09. Return to text.

[26] Compare 28 U.S.C. § 332 (1988 & Supp. V 1993) (prescribing circuit judicial councils) with 28 U.S.C. § 474 (Supp. V 1993) (prescribing circuit review committees). See generally Tobias, Improving, supra note 10, at 1623-27. Return to text.

[27] See Telephone Interview with David Pimentel, Assistant Circuit Executive for Legal Affairs, United States Courts for the Ninth Circuit (July 22, 1994) (notes on file with author) [hereinafter Pimentel Interview]; see also Tobias, Suggestions, supra note 11, at 365-66 (affording additional analysis of Fourth Circuit efforts). Return to text.

[28] See Minutes, supra note 1, at 4-5; see also infra notes 32-39 and accompanying text. See generally Tobias, Improving, supra note 10, at 1605 & n.106. Return to text.

[29] See Pimentel Interview, supra note 27; Telephone Interview with Andrew Tietz, Assistant Circuit Executive, United States Courts for the First Circuit (July 22, 1994) (notes on file with author) [hereinafter Tietz Interview]; supra note 11. Return to text.

[30] Pimentel Interview, supra note 27; see also Tobias, Suggestions, supra note 11, at 364-65 (affording additional analysis of Ninth Circuit efforts). Return to text.

[31] Pimentel Interview, supra note 27. Return to text.

[32] See Minutes, supra note 1. Return to text.

[33] Id. See generally Tobias, Balkanization, supra note 10, at 1406-9. Return to text.

[34] Minutes, supra note 1, at 3; Memorandum from James A. Higgins, Circuit Executive, U.S. Courts for the Sixth Circuit, to Circuit Council, U.S. Courts for the Sixth Circuit (Apr. 1994) [hereinafter Higgins Memorandum]. Some federal districts voluntarily changed local rules that the Staff Attorney's Office found to be clearly inconsistent, although the districts modified few rules that involved questions of interpretation. Return to text.

[35] See Memorandum Regarding Conflicts Between Local Rules and the Federal Rules of Civil Procedure from Dave Wallace, Staff Attorney, U.S. Courts for the Sixth Circuit, to Ken Howe, Senior Staff Attorney, U.S. Courts for the Sixth Circuit (Mar. 2, 1994) [hereinafter Wallace Memorandum]; Higgins Memorandum, supra note 34. Return to text.

[36] Minutes, supra note 1, at 3-4; see also Higgins Memorandum, supra note 34. Return to text.

[37] Minutes, supra note 1, at 3-4. Return to text.

[38] See supra notes 24-31 and accompanying text. For valuable analysis, concluding that the CJRA affords comparatively limited authority to adopt inconsistent local procedures, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994); see also Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992). But see Friends of the Earth v. Chevron, 885 F. Supp. 934 (E.D. Tex. 1995). But cf. Edwin J. Wesley, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Federal Rules of Civil Procedure; CJRA Plans; Rule 83—What Trumps What?, 154 F.R.D. 563, 574 (1994) (suggesting that the "CJRA trumps the FRCP to the extent the CJRA specifically deals with a particular matter"). See generally Higgins Memorandum, supra note 34. Return to text.

[39] CJRA experimentation is scheduled to end in 1997, if Congress allows the statute to expire. See 28 U.S.C. § 471 notes (Supp. V 1993) (reproducing Pub. L. No. 101-650, §103(b)(2) (1990)). See generally Biden, supra note 6, at 1294. Return to text.

[40] I employ the Sixth Circuit Judicial Council's experience as an example from which other councils can extrapolate. For instance, the coincidence that the Sixth Circuit had already undertaken some review means that some suggestions for identifying local procedures not based on the CJRA have more applicability to other councils. My recommendations are premised primarily on the work of the Ninth Circuit District Local Rules Review Committee. Congress should address some concerns; most importantly, it should appropriate sufficient resources to allow councils to fulfill their review duties under the JIA and Rule 83. See Tobias, Suggestions, supra note 11, at 364-65. Return to text.

[41] Telephone Interview with Professor Margaret Johns, U.C. Davis School of Law, and Chair, Ninth Circuit District Local Rules Review Committee (Sept. 22, 1995) (notes on file with author) [hereinafter Johns Interview]; see also supra note 19 and accompanying text. Return to text.

[42] See supra note 20 (suggesting that district judges strongly defend their prerogatives to adopt local procedures). Return to text.

[43] See DELAY REDUCTION PLAN, supra note 23, at 9 (asserting that "to the extent that the Federal Rules of Civil Procedure are inconsistent with this Plan, the Plan has precedence and is controlling"); see also Friends of the Earth v. Chevron, 885 F. Supp. 934 (E.D. Tex. 1995); see generally supra note 38. Return to text.

[44] See Robel, supra note 38; see also Mullenix, supra note 38; see generally supra note 38. Return to text.

[45] A number of districts have apparently reconsidered and amended, as indicated, their local rules. See Tobias, Suggestions, supra note 11, at 366 (identifying Eastern District of Virginia, Northern District of West Virginia, Southern District of West Virginia); Carl Tobias, Refining Federal Civil Justice Reform in Montana, 56 MONT. L. REV. 539, 542-43 (1995) (identifying District of Montana). Return to text.

[46] No districts in the Sixth Circuit appear to have reexamined and amended local rules; however, my research is not definitive because it is difficult to secure reliable information. If the concern that I have expressed is irrelevant to the Sixth Circuit, it remains applicable to councils in other circuits whose districts have reconsidered and revised local rules. Return to text.

[47] I believe that the Sixth Circuit's districts are typical. The three Early Implementation Districts (EID) adopted civil justice plans and prescribed nearly all CJRA procedures before 1992. These and many EIDs elsewhere have subsequently modified some rules, namely, those governing automatic disclosure, a controversial discovery technique. See DONNA STIENSTRA, IMPLEMENTATION OF DISCLOSURE IN U.S. DISTRICT COURTS, WITH SPECIFIC ATTENTION TO COURTS' RESPONSES TO SELECTED AMENDMENTS TO FEDERAL RULE OF CIVIL PROCEDURE 26 (1996); see also Carl Tobias, Judicial Oversight of Civil Justice Reform, 140 F.R.D. 49, 56 (1992) (providing list of EIDs); Carl Tobias, Collision Course in Federal Civil Discovery, 145 F.R.D. 139 (1993) (analyzing disclosure). Non-EIDs only had to issue civil justice plans by December 1993. See 28 U.S.C. § 471 notes (Supp. V 1993) (reproducing Pub. L. No. 101-650, § 102 (1990)); see also supra notes 45-46 and accompanying text. Return to text.

[48] The approach in this paragraph is the one that the Ninth Circuit Committee is following. Johns Interview, supra note 41. Return to text.

[49] Local procedures adopted under the CJRA, but which find support in other authority, such as other federal statutes, the JIA, the Federal Rules of Civil Procedure, or inherent judicial authority, need not expire. I direct some suggestions in this paragraph to Congress. Regardless of how Congress resolves the CJRA's fate, it must allocate adequate funding for councils to discharge their review obligations under the JIA and Rule 83. Return to text.

[50] This approach is similar to the one which I suggested above for local procedures that are not based on the CJRA. Return to text.

[51] Wallace Memorandum, supra note 35. Return to text.