Abrogating Magic: The Rules Enabling Act Process, Civil Rule 84, and the Forms

ABROGATION MAGIC: THE RULES ENABLING ACT PROCESS, CIVIL RULE 84, AND THE FORMS Brooke D. Coleman* INTRODUCTION The Committee on the Federal Rules of Practice and Procedure (“Standing Committee”) seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms.1 Poof—after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act Process.2 The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments.3 This essay * Associate Professor of Law, Seattle University School of Law; J.D., Harvard Law School; B.A., University of Arizona. Thanks to the organizers and participants of the Northeastern School of Law Symposium honoring Professor Steve Subrin. This essay benefited greatly from the comments received at the January 2014 Civil Rules Hearing and at the Subrin Symposium. Special thanks also to Constance Locklear for her research assistance on this essay. 1 COMM. ON RULES OF PRACTICE & PROC. OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF BANKRUPTCY AND CIVIL PROCEDURE 49–50 (2013) [hereinafter PRELIMINARY RULE DRAFT]. Rule 84 provides, “The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” FED. R. CIV. P. 84. The abrogation of Rule 84 will be effective on December 1, 2015, unless Congress acts to amend or defeat the rule change. This essay was finalized and went to publication before December 1, 2015; thus, throughout the essay, references to Rule 84 indicate the change is proposed, not adopted. 2 For a summary of the process, see infra Part II.A. 3 See CTR. FOR CONSTITUTIONAL LITIG., PRELIMINARY REPORT ON COMMENTS ON PROPOSED CHANGES TO FEDERAL RULES OF CIVIL PROCEDURE 2 (2014) [hereinafter PRELIMINARY REPORT] (noting that more than 2,300 comments were received in response to the Civil Rules Committee’s proposed amendments); Letter from Ctr. for Constitutional Litig. to Hon. David G. Campbell, Chair, Civil Rules Advisory Comm. 2, (Apr. 9, 2014), available at http://www.cclfirm.com/files/040914_Comments.pdf (noting that most of the comments received were related to the discovery amendments). 1093 1094 NEVADA LAW JOURNAL [Vol. 15:1093 argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear. I. RULE 84 AND THE OFFICIAL FORMS Before addressing how the proposed abrogation of Rule 84 and the Official Forms is problematic, this essay will examine the adoption of Rule 84 and the Forms. It will also briefly discuss how courts and scholars have viewed and utilized the forms over the past seventy-seven years. A. History of Rule 84 The original Federal Rules of Civil Procedure, adopted in 1938, included Rule 84. The original Rule 84 stated that the appendix of forms was “intended to indicate ‘the simplicity and brevity of statement which the rules contemplate.’ ”4 Some courts took this language to mean that the forms were merely suggestive.5 In 1946, the Committee amended Rule 84 to state that “[t]he forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.”6 The Advisory Committee Note further explained that most courts had understood the original Rule 84 to mean that the “forms . . . are sufficient to withstand attack under the rules under which they are drawn, and that the practitioner using them may rely on them to that extent.”7 The amendment, the Note explained, was meant to confirm this common understanding of Rule 84 and the Forms.8 It was also intended to tamp down the “isolated results” some courts had reached that were to the contrary.9 Thus, Rule 84 and its forms were an original part of the Civil Rules. More than just being part of the text, however, the forms were part of the rulemakers’ ethos. Charles Clark explained, We do not require detail. We require a general statement. How much? Well, the answer is made in what I think is probably the most important part of the rules so far as this particular topic is concerned, namely, the Forms. These are important because when you can’t define you can at least draw pictures to show your meaning.10 Perhaps because the forms were so ingrained in the ethos of the rules, there has been little activity around Rule 84. In 1989, the Advisory Committee on the Federal Rules of Civil Procedure (the “Civil Rules Committee” or “Commit4 Ramsouer v. Midland Valley R.R. Co., 135 F.2d 101, 107 (8th Cir. 1943) (quoting thenRule 84). 5 Emp’rs’ Mut. Liab. Ins. Co. of Wis. v. Blue Line Transfer Co., 2 F.R.D. 121, 123 (W.D. Mo. 1941); Washburn v. Moorman Mfg. Co., 25 F. Supp. 546, 546 (S.D. Cal. 1938). 6 FED. R. CIV. P. 84. 7 FED. R. CIV. P. 84 advisory committee’s note (1946). 8 Id. 9 Id.; see United States v. Warner, 8 F.R.D. 196, 196 (M.D. Pa. 1948) (confirming the sufficiency of the forms, as set forth in Rule 84). 10 Charles E. Clark, Pleading Under the Federal Rules, 12 WYO. L.J. 177, 181 (1958). Summer 2015] ABROGATION MAGIC 1095 tee”) proposed an amendment to Rule 84 that would have replaced the appendix of forms with a practice manual.11 The manual would have included a set of forms similar to those found in the existing appendix of forms.12 The Judicial Conference of the United States would have had the authority to amend the manual directly.13 In other words, any changes to the manual or the included forms could have been implemented without resort to the Rules Enabling Act Process. Academics, judges, and members of the bar argued that this amendment violated the Rules Enabling Act by giving the Judicial Conference rulemaking power that it did not have under the Act.14 The amendment was ultimately abandoned, largely due to these concerns. It was not until almost twenty years later that the Civil Rules Committee engaged in a renewed discussion of Rule 84 and the forms.15 The October 2009 meeting was dominated by a discussion of how Bell Atlantic Corp. v. Twombly16 and Ashcroft v. Iqbal17 had been received in practice.18 Following that discussion, the Committee moved on to discuss whether the forms were necessary or whether, because of the passage of time, they had become irrelevant.19 The Committee wondered whether it should update all of the forms to reflect some complexities of practice, namely those that had developed in patent litigation20 or because of Twombly and Iqbal.21 It ultimately decided that further study was necessary.22 1 (...truncated)