Below are two ways to forecast my commentary. First, I provide a brief overview, excerpted and adapted from a forthcoming essay Civil Processes, to be published in the Oxford Handbook of Legal Studies (Peter Cane & Mark Tushnet, eds., Oxford Press, 2003). Thereafter, I provide the summary of contents from the 2003 casebook, Adjudication and Its Alternatives: An Introduction to Procedure (Foundation Press, 2003).

From Civil Process to Civil Processes

      For much of the twentieth century, the term "procedure" served as a reference to the processes by which courts made decisions. Courts were assumed to be institutions focused singularly on adjudication, and proceduralists were, in turn, focused exclusively on courts. But by the end of the twentieth century, courts no longer provided only adjudication but also offered an array of other processes. Further, through professionalization and administrative expansion, judiciaries had developed into corporate actors capable of pressing specific agendas about their own forms and charters.

      Scholars interested in civil processes were no longer able to cluster about a single topic, Procedure, nor could they focus solely on the processes for adjudication. Rather, they had come to understand that many venues (including administrative agencies in the public sector, arbitration in the private sector, and transnational bodies) were central sources of procedural rulemaking and invention.

      My presentation will chart and analyze the shifts in civil processes during the twentieth century by examining sequences of reformation and critique during which calls have been made for more, for less, and for different forms of process.

      A predicate to this discussion is the recognition that changes in legal, political, and economic regimes far-afield from procedural rules often influence the use of civil processes. For example, as Stephen Yeazell has detailed, during the first half of the twentieth century, some jurisdictions required owners of homes and automobiles to carry insurance. Those injured learned to seek compensation, both through their own policies and from defendants with the capacity to pay. The quest for recoupment, in turn, helped to spur a market for lawyers who (when permitted by ethical rules) financed small-scale cases in anticipation of returns on loans through contingent fee arrangements.

      A similar but less often discussed influence on the growth of litigation is women's rights. Before the twentieth century, women had no juridical voice. With recognition of women as rightsholders comes new forms of litigation, including disputes within families, which represent a substantial segment of many civil dockets. And, as Rick Abel has analyzed, just as substantive rights and procedural rules create incentives for certain forms of lawyering, so does the legal profession's structure (policing access to lawyers) influence the shape of procedural rules.

      Assessing the effects, in turn, of procedural reforms also requires sensitivity to a range of nonprocedural rules as well as to the political institutions and social movements that spawn them. For example, in many countries, efforts are underway to restructure procedural opportunities in the name of reducing complexity, cost, and delay. In some jurisdictions, that struggle comes against a backdrop of an independent and entrepreneurial bar with substantial authority over procedure. Entities opposed to the use of litigation to enforce or create government regulation seek procedural reform in an effort to limit their own liability. In other countries, a minimal tradition of lawyer independence exists, and most of the population lacks access to government-based dispute resolution processes. Reformers want to revamp process to make litigation a means of implementing legal norms. Thus, even when calls for change in different countries are comparable, the implications of restructuring civil processes differ, requiring political understandings of the import of reforms, the resources available to support them, technical challenges to their implementation, and economic interests seeking expansion or constraint of procedural opportunities.

      Assessing procedural debates not only requires sensitivity to particular jurisdictions. Awareness of transnational movements is also needed. Worldwide commitments to -- as well as unhappiness with -- civil processes can be seen in international and regional treaties and in research from the academy. Increasing interaction among professional classes, driven by both political and economic transactions, are diminishing the structural distinctions between civil and common law countries in professional training, career paths, and tasks for lawyers and judges. Further, initiatives are underway to create procedural norms and sometimes processes that cross jurisdictional lines.

      Some read such developments as the proliferation and juridification of processes, attesting to the corporate power of judges and lawyers, enabled by administrative structures that facilitate their influence in legislatures and their control over process. But, while transnational political and professional organizations are linking political rights and commerce with formal court-based processes, many of the same institutions are also raising questions about the utility of process, examining the political economy of disputants, lawyers, and judges, and crafting alternatives to reduce formality.

      But as research (such as Hazel Genn's work at the Oxford Socio-Legal Institute and Deborah Hensler's at Rand) on consumers of dispute resolution services make plain, most potential disputants have no means of access to any court-based remedy, regardless of levels of formality. Such non-disputants are rarely the source of procedural reform because pressures for change in process come, in large measure, from those with the resources to use procedural systems repeatedly. As Marc Galanter explained, the "repeat players" have the capacity and the interest in playing for the rules. Given the incentives of repeat players, concerns exist that reform proposals are either irrelevant, nonresponsive, or harmful to those not participating in shaping the process.

      Civil processes are thus one site of the struggle between public and private governance and between state-based redistribution efforts and market-focused mechanisms. For some, civil processes ought to be a beacon of justice and embody a society's ideals about equal opportunities and fair allocation of resources. Conflict is, under this rubric, neither pathological nor inefficient but a means for public norms to be understood, applied, and generated. The public derives utility both from being able to bring claims and from being able to watch others in dispute, as the processes themselves express social values. In this vein, lawyering is a form of social service, and reforms are needed to increase access and to render civil processes more transparent.

      For others, reliance on civil processes is evidence of the failure of private ordering; the less such processes are used, the healthier the society. From this vantage point, goals for reform include the internalization of disputes to the immediate participants and a reduction in the visibility of conflict through privatization of processes. Yet other commentators see the use of civil processes as a palliative offered by legal liberalism, committed to sustaining the power of professional and propertied classes while dampening down distress about that very social order. Given such deep conflicts about the utility and propriety of reliance on civil processes, it is not surprising that the current era is filled with disagreement about the import and shape of such processes.

II. Twentieth Century Procedural Reforms in the United States

      As the market for adjudicatory services has expanded (in terms of demand and supply) and as it has diversified (in terms of the kinds of disputes eligible for legal resolution, the range of tasks for third parties, the kinds and quality of processes provided, and the remedies envisioned), choices emerge about which disputes deserve what form of process. Many countries -- often invoking the language of "crisis" -- have taken on projects reorganizing their courts, retooling their civil processes, reallocating disputes across venues, and reconfiguring rules on costs and attorneys' fees. Current debates in the United States focus on which processes are optimal for what kinds of disputes, about whether government ought to subsidize litigants, and about how much access to courts should be permitted.

            A. Trans-substantive Aspirations for Adversarial Process

      The baseline for late twentieth century critique was established by the great procedural reform project during the first half of the twentieth century, the Federal Rules of Civil Procedure. Under the governing 1934 statute, the Supreme Court gained the power to promulgate rules of practice and procedure that, absent an affirmative legislative override, became effective nationwide. To create those rules, the Court turned to experts -- lawyers and judges. The resultant 1938 civil rules eschewed formal procedural distinctions in favor of functional delineations, aimed at easing access and focusing on the substantive issues in dispute. By spanning the country, the new rules created national processes that united federal judges through shared daily practices, which in turn promoted their identity as a distinctive cadre of legal actors. The rules gave those judges a good deal of discretion, and, when courts subsequently adopted individual calendar systems, judicial authority over case processing resulted in the embrace of managerial judging.

      The 1938 Rules thus represented a commitment to nationalization, to uniformity, to simplification, and to expertise. The scholarly and legal currents that supported this project have been conceptualized (at least in hindsight) as part of a progressive project promoted by individuals having faith in facts and government. The reworkings of procedure were concurrent with a larger movement committed to governance through increasing reliance on federal courts and agencies to enforce national norms in a milieu appreciative of managerial expertise. Constitutional interpretation looked favorably upon court-based processes; statutory provisions were understood as preferring adjudication to other forms of disposition, and courts were committed to streamlining and "modernizing" their processes to meet growing demands.

      For several decades, this model was admired and its aegis expanded. More than half of the states formatted rules to resemble the federal system. Further, during the 1960s and 1970s, the template provided by the Federal Rules was applied to the administrative context. The Supreme Court -- borrowing Professor Charles Reich's insight that statutory entitlements were forms of "property" to be protected from state deprivation by "due process of law" -- required agencies making decisions about individual entitlements to employ judicial modes of process to ensure fairness (Reich, 1963).

            B. Problems of Access and Equipage, Individual and Aggregate Responses

      Equality problems haunt all procedural systems, and those that rely on party-based fact gathering and preparation are especially dependent upon the capacities of adversaries. As more individuals and groups (and specifically those who were poor or subject to other forms of subordination) came to be understood as rightsholders, their lack of resources tested a procedural system that sought to justify outcomes based on information generated by disputants.

      During the 1960s and early 1970s, some efforts were made toward equipping litigants with resources. The Supreme Court interpreted the constitutional guarantee of counsel for criminal defendants as requiring government to provide indigent defendants with lawyers, funds for expert evidence, and transcripts to enable appellate review. Scholars and activists offered theories of why constitutional mandates of due process and equal protection ought similarly to protect at least some civil litigants. They found a judiciary occasionally sympathetic to a specific example -- such as poor litigants seeking to divorce spouses but unable to pay filing fees. But advocates could not convince the federal judiciary to analogize problems of inequality based on poverty to those based on race, to which equal protection analysis applied. Moreover, the federal judiciary was leery of understanding due process guarantees as requiring subsidies for the many litigants handicapped by having fewer resources than their opponents.

      But claims about the problems of unfair limitations on access to justice -- linked more generally to a "war on poverty" and the advancement of civil rights -- obtained support for a few decades in the legislature. In 1974, Congress created the Legal Services Corporation to provide lawyers for community-based offices and for "back-up centers" charged with thinking about how legal regimes affected the poor. Congress also denominated certain kinds of plaintiffs as serving public ends and thereby deserving of reimbursement for litigation fees and costs, often through one-way shifts from losing defendants to victorious plaintiffs.

      Procedural rulemakers also played a role in facilitating access. For example, revisions in 1966 to the class action rule authorized self-appointed individuals (and their lawyers) to bring cases on behalf of hundreds or thousands of others, similarly situated, who might not know or be able individually to pursue claims of right. For some attorneys, working on behalf of litigants seeking institutional reform, statutory fee-shifts would fund their work, if successful. Others hoped to obtain large court-awarded fees through the equitable doctrine that co-plaintiffs, gaining monetary benefits through the work of representatives, had to pay those lawyers a "percentage of the fund" generated. While the contingent fee system had provided a modicum of access for individual plaintiffs, the growth of aggregate damage litigation spurred the market for large-scale plaintiff-based tort work. As tort lawyers began to form collectives, they gained -- for the first time -- the economic resources to challenge industry practices.

      These changes in civil and social processes both reflected and contributed to different understandings of the possibilities of adjudication. Court-based enforcement of federal law appealed to Congress, which authorized litigants to bring a widening array of lawsuits, and caseloads grew. Sometimes the new statutory regimes came with built-in processes, often located in agencies. Statutes often created specified procedures for a particular kind of lawsuit, departing from the framework of trans-substantive procedures controlled by the courts. Further, the class action rule, complemented by other forms of aggregation, spawned the development of the "big case," a genre of its own, prompting "manuals for complex litigation" to detail methods of handling such litigations. At the other end of the spectrum, special procedures were developed for prisoners, claimants under federal benefit systems, and pro se litigants.

      As Congress was authorizing more and varying kinds of lawsuits, Congress was also authorizing more and differing kinds of judges, many of whom did not enjoy much by way of the structural or individual independence that had been a signature of federal adjudication. The life-tenured judges, in turn, shaped legal doctrines accepting of administrative judging, of diminishing roles for juries, and of replacing both judge and jury with publicly-sponsored and privately-based ADR programs.

            C. Failing Faith in Adjudicatory Procedure

      During the last decades of the twentieth century, the celebration of the processes embodied in the 1938 Rules was replaced with the language of crisis, coupled with calls for restricted entry, limited access to information, and shifting litigants away from adjudication and towards other forms of dispute resolution. The critiques stem from a range of intellectual and political traditions.

      1. Insufficient Fairness and Equality: Some objections came from those committed to the rubric of adjudicatory civil processes but wanting to take better account of economic disparities, discrimination against individuals based on their identity, and the many challenges of rendering legitimate judgments. The procedural system was faulted for not doing enough to facilitate rights-claiming, not only for the poor but also for large segments of the middle class. But legislatures refused to respond with sufficient subsidies. Further, well-heeled opponents convinced Congress to impose severe restrictions on lawyers for the poor. Similarly, courts narrowed fee-shifting rights, refused to compensate attorneys for the risk of taking contingent claims, and curbed access enabled through class actions.

      Others worried that courts were populated by governing elites inhospitable to claimants identified as occupying disfavored statuses. Although the demography of court users (both voluntary and involuntary) had shifted, the composition of judiciaries and of the legal profession had not changed as much, resulting in judiciaries often more than eighty percent white and male. The response, begun in state courts during the 1980s and 1990s, were projects to identify sources of "bias" in the courts and to redouble efforts to enhance "fairness," in terms of drafting codes and rules focused on civility in courtroom interactions, providing more translators, changing employment practices, and to a much lesser extent, altering substantive legal practices.

      Yet another source of friendly concern came from social science empiricism on cognitive processes. Psychologists explored how individuals and groups make decisions and interrogated procedural forms to assess whether to alter modes of presentation, rules of evidence, and the numbers and background knowledge of decisionmakers. Some courts turned to scientific panels, admitted or refused expert testimony, or attempted to change procedures for juries.

      2. Insufficiently Inclusive, Relaxed, or Creative Process: Another critique moved away from the 1930s adjudicatory mode but did not debate its aspirations for easy access to process. Rather, under an umbrella of humanism, communitarianism, and social welfare concerns, commentators objected to the depersonalization, objectification, and distance that they associated with courtroom formality and its dependency on legal professionals. Arguing for more user-friendly, less-adversarial processes, posited as capable of producing more useful remediation, these critics sought to re-center process on the disputants' voices and goals. The movement embraced ADR as more generative than adjudication. While one form of critique sought to supplement adjudication by opening "many [other] doors," another saw trial as requiring extravagant investments of resources to yield imperfect states of knowledge and unhappy participants.

      This movement's success, if measured through formal rule changes, institutionalization, and support from lawyers and judges, has been substantial. The 1938 Rules were amended to direct judges to promote ADR; new statutes were written to authorize court-annexed arbitration, and legislatures mandated the use of ADR in agencies. Institutions supporting ADR proliferated, convening conferences, proffering services, teaching law school classes, and shaping model rules, including, in 2001, a Uniform Mediation Act.

      An alternative metric is empirical, attempting to ascertain the use of ADR processes and their costs, speed, and responsiveness to disputants' needs. Surveys of lawyers found that, aside from case-management and judge-run settlement conferences, courts in fact provided relatively few ADR services. Studies also found that ADR imposed costs (in terms of lawyers' time and energies) and -- through strategic exploitation -- could slow negotiations. Whether more lawyer or judicial investment yielded better process or outcomes has been difficult to measure, spawning a debate about why and when to advocate various kinds of ADR. Further, research on litigants undercut the claim that adjudicatory proceedings were as alienating as some had posited. Studies found that litigants liked to "tell their stories" and preferred more formal processes, identified as dignifying the participants and treating them impartially.

      3. Too Much Process: A different kind of critique worried that the system provided too many opportunities for process. These concerns regard twentieth century aspirations for lawyer-based production of information to yield good and reliable outcomes as simplistic, superseded, or wrong. Game theorists and economists analyzed such processes and their efficiencies. Critics pointed to rules of discovery, crafted before photocopying and computers were commonplace, which could not have envisioned the massive amounts of information generated, stored, or hidden. Such rules enabled lawyers to garner profits from production and obfuscation and created incentives to build large law firms fueled by associates clocking hourly bills. Commentators argued that aggregation rules were overly optimistic about the capacity to group similarly-situated individuals in collectives that could be adequately represented through a single or small numbers of self-elected or designated advocates. Critics argued that strategic acting by attorneys for plaintiffs and by defendants in search of "global peace" yielded judgments protecting both sets of interests at the expense of either those injured or the public.

      4. Undersupervised Processes and Lawyers: Another critique fastened on sloppiness, inattention, ineptitude, inexperience, and misuse, attributed to lawyers engaged, with a range of motives and skills, in strategic interaction. As pretrial and discovery rules made these problems more transparent, judges argued that they should take on a managerial role. Through formal redrafting of rules and energetic teaching programs, judges and other court personnel gained control over the pretrial phase. Managerial judges found themselves intrigued by the possibility that their oversight could not only reduce waste on the way to trial but also produce settlements, aborting litigation altogether. Court-based settlement efforts, once termed "extrajudicial," became regular features of civil processes. The definition of the "good judge" came to be the judge focused on and able to achieve dispositions, and trials came to be described as "failures" of the system that ought to be producing settlements. Although popular culture proliferated images of trials, in legal civil processes they became increasingly rare. By century's end, fewer than three percent of all federal civil proceedings ended with a trial by either judge or jury. The data for state courts were similar -- juries reached verdicts in fewer than five percent of contract and tort disputes.

            D. Civil Processes Reconfigured

      Thus, a range of constituencies produced critique, and a subset succeeded in reformatting processes. The aspiration for trans-substantive uniformity of the 1938 Rules has been rejected -- through amendments made by the judiciary, carving out special processes for different kinds of cases and detailing local and varying rule regimes; by Congress, requiring that certain litigants use subject-matter specific processes; by contract, creating a multitude of dispute resolution programs. Within the academy, the plausibility of such aspirations have been undermined as the image of public-spirited expert judges and lawyers, presumed able to craft processes neutral as between opposing litigants, has eroded during the sixty years of practicing under the rulemaking regime. Strategic repeat players within the litigation system have learned to lobby such rule makers or to go to Congress to intervene at their behest. For example, while misuse of the discovery system was documented in only a small segment of cases, critics harnessed images of exploitative lawyers and of overwhelming quantities of data and successfully argued for rule revisions reducing access to information and increasing court authority over its exchange. Similarly, while class actions have a complex track record, opponents focused attention on those cases in which lawyers were paid vast sums of money in contrast to negligible recoveries of individual plaintiffs, and succeeded in limiting class action opportunities in federal courts. Of course, just as the expansion of civil processes had not been founded exclusively on premises about process, so the efforts at constriction have not come solely through interest in civil processes. The attack on the adjudicatory mode of the Federal Rules has been coupled with efforts to restrict liability for torts, environmental and consumer injuries, and civil rights.

      While I have focused on civil processes at the trial level, changes in appellate process have followed a similar pattern. The right of appeal became enshrined in the later part of the nineteenth century and actualized in the twentieth century through expansion of the number of judges dedicated to appellate work and the development (in both federal and state systems) of intermediate appellate courts, hearing all who filed. A third tier -- the highest court -- then selected a subset for additional review. The volume of appeals grew, as well as skepticism about its utility. By the later part of the twentieth century, substantial revisions were in place. While appeal as of right remained the law, some scholars argued that, in fact, a discretionary system of review had been put into place. Appellate courts relied on staff attorneys to screen cases; many cases were decided without argument, and fewer than twenty percent of the rulings in the federal system resulted in published decisions. Other scholars worried that the freedom gained by the Supreme Court over the twentieth century to select the cases it would decide had negative effects on the Court's jurisprudence, prompting an inappropriate set of rules for lower courts, too ready to oversee Congress and too constrained to remediate in individual cases.

III. In Medias Res

      Contemporary developments are subject to competing assessments. For some, judicially-based civil processes are anachronistic, predicated on an obsolete nineteenth-century individualistic model. As societies organized through bureaucracies and lawyers moved toward aggregate practices, judges were still peculiarly functioning as solo practitioners, inefficiently engaging in labor-intensive craft-like work. The judiciary is thus belatedly shifting gears to form corporate capacity, and from this vantage point, higher court judges are appropriately becoming administrators, overseers, and employers -- selecting and dispatching their juniors and rationing court attention. First tier judges are, in turn, seen as properly engaged in multi-tasking, molding processes and inter-personal techniques to fit needs. Declining percentages of trials and formal appellate rulings become measures of success.

      For others, the move to management is a retreat from the promise that, through transparent processes, shared norms will be developed and applied. That faith in governance and expertise persists is evident in professional efforts to format sets of trans-national rules to make processes accessible at least to some strata of society. Further, a massive socialization project remains intact that, through television, film, news, and international activities, focuses on the centrality of court-based processes. Yet others, relying on empirical work about usage of public and private process, see both early and late century self-styled "reforms" as unresponsive and therefore irrelevant to many disputants, who are without the ability to participate in any mode of civil processes.

      The changes are also starting to stimulate interest in new sets of questions. For example, given the shift away from common law courts -- promoted and supported by common law courts -- will judges be able to control their own dockets by attracting the cases they deem "important"? As the market of dispute providers expands, what institutions will dominate? Perhaps, in light of infinite volume (or government control over volume through its power over legal claims) and political and economic reliance on government-based processes, courts will retain control. Further, in the twentieth century, some kinds of disputes (workers compensation, car accidents, and divorce) have cycled into and others out of courts. On the other hand, as judges themselves press to alter juridical modes and resemble other governmental workers engaged in an array of tasks, it is not clear how they will or why they should sustain claims on resources or rights of independence from political oversight.

      The proliferation of venues also prompts questions about what inventions await. Some argue that all these reforms are just variations on a legal theme, professionally dominated and capable of sustaining its own legitimacy. Others see a natural law of trans-substantive procedure -- rooted in democratic theory and psychological needs -- that repeatedly produces a format involving a hearing, framed by rules of transparency, with an impartial decisionmaker limited in its powers. Whether predicated upon state or private authority, civil processes repeatedly shape comparable means by which to enable interaction among parties, the development of information, and the constrained power of decisionmakers. But others see this template as culturally specific, missing understandings of justice and remediation that could prompt imagining new forms of proceeding.

      A final note is the reminder that a focus on proceduralism ought not imply an autonomy that does not exist. Reforms of the past century were never "only" about procedure but were related to the creation of professionalized judiciaries, to the institutionalization of courts as corporate actors within governments, to the development of agendas by academic and practicing lawyers, and to the goals of court users, all as part of country-specific and of transnational social movements.