Document Type

Article

Publication Date

1994

Abstract

Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and political forces behind this unusually controversial rulemaking event. She not only describes the tortured history of problematic Civil Rules amendments but she also implies that this problematic history should prompt *59 the profession to rethink the rulemaking process. Subrin convincingly suggests that the 1993 Amendments will not do much good and advances an alternative vision of discovery reform, a proposal he thinks will both respond to perceived problems with American litigation and militate against the increasingly partisan politicization of Civil Rules revision.

When Dreyfuss and Subrin presented their papers, civil procedure and litigation professors reacted with vigor and engaged in animated discussion during the informal question period following the presentations. The need to leave time for the second panel of the program curtailed the professors' discussion. Obviously, the legal profession remains engaged in the discovery reform debate even though the momentary political storm over the latest Civil Rules amendments subsided when the amended rules took effect December 1, 1993. Although it remains possible that the new disclosure and discovery rules will defy the predictions of their critics, I find this unlikely. Time will prove Dreyfuss, Subrin, and other critics correct in their misgivings. In this article, instead of echoing others' criticisms of the 1993 Amendments, I hope to place the 1993 Amendments in broader issues of the current litigation reform debate and to specifically ask of Subrin’s proposal the same questions posed about the 1993 Amendments: Is it evolution, revolution, or devolution?

Publication Citation

46 Fla. L. Rev. 57 (1994).