One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways.
First, the participation of both groups, particularly the judiciary, has been more institutionalized. During the Nineteenth Century and the time of debate over the Enabling Act, the federal judiciary lacked today's infrastructure of an organized Judicial Conference, an Administrative Office and staff and a “policy think-tank” arm such as the Federal Judicial Center. The modern, more institutionalized judiciary displays both greater capacity to generate litigation proposals and increased ability to react to the initiatives of others, although neither trait ensures that the judicial establishment will succeed in persuading other policymakers about its policy views.
I use the term “judicial establishment” to denote something of a power structure in the administration of these organizations that represent the bench. Although there are now approximately 800 federal judges, their individual influence on policymaking varies widely. Many, or perhaps most, judges have no direct impact because of inexperience, preoccupation with demanding daily activities, indifference, political marginalization or other reasons. A relatively small number of “insider” judges, however, seem to exert great influence, through their appointment to important positions in the judicial establishment, but also because of prestigious reputations or sustained activity in litigation reform.
59 Brook. L. Rev. 659 (1993).
Stempel, Jeffrey W., "New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform" (1993). Scholarly Works. Paper 198.