BY VAUGHN R. WALKER, 69 U. Miami L. Rev. 385 (2015).
First of all, I want to extend my appreciation to the University of Miami Law Review for the invitation to be with you and to speak at the 2014 Symposium, Leading from Below. This is a beautiful law school on a delightful campus. You are very lucky to be studying here. But, of course, it is the extremely able faculty of this law school and the wonderful and diverse group of students who study here that provide the spark of the learning process. That spark has been evident in all the conversations I have had in the short time I have been here.
Now, the topic that the panelists have been asked to talk about is described as an “examin[ation of] the controversial practice of using social facts and statistics to show harm to communities, . . . and whether district court judges should compile a factual record with an eye toward creating opportunities to change the law on appeal.”
First off, why are we talking about this subject? The reason, or certainly a major reason, why this kind of fact-finding in the judicial process merits reflection goes back a very long way. It goes back at least to 1934 when the Rules Enabling Actwas passed. Among other things, that act merged the law and equity jurisdictions of the federal courts.It thus made available to the federal courts all the tools historically associated with courts of equity. These tools were powers traditionally associated with the executive arm of government because courts of equity in our Anglo-American legal tradition were associated with the king or, in this country, the executive.
The Federal Rules of Civil Procedure, which were the product of the Rules Enabling Act, and became effective in 1938, afforded federal courts the use of the tools of equitable procedure: liberal joinder of claims and parties; hands-on judicial case management; and, significantly, class actions, which were made more powerful by the 1966 amendments to the Federal Rules of Civil Procedure;along with other forms of mass litigation. These essentially equitable techniques were imported into the federal legal process, and similar innovations have followed in almost all the state courts.
When the Judiciary Act of 1789 created the first federal courts apart from the Supreme Court, these newly established federal courts were mandated to pattern their procedure after that of the states in which they functioned.That proved to be essentially unworkable in a national judiciary, especially as new states were admitted to the union. It was not until the latter part of the nineteenth century that uniformity of procedure and the present day organization of the federal courts could be achieved, a transformation completed by the Rules Enabling Act. The results of these innovations of organization—unified procedure and a blending of equity and law—have transformed the ability of federal courts to address issues that confront people and institutions, both public and private, and for which there are essentially no other avenues through which to seek resolution.
Among the most prescient observations about the revolution wrought with the Rules Enabling Act was a law review article written in 1940,just a couple of years after the Federal Rules became effective. The authors were Harry Kalven and Maurice Rosenfield of the University of Chicago. It is a law review article that I put on the reading list every year that I teach, and it rewards me in re-reading every time. Kalven and Rosenfield foresaw that the processes established in the then-new Federal Rules of Civil Procedure were in many of its uses essentially administrative in kind and operation. Like good lawyers, they drew the right analogy. They perceived that these processes augmented and enriched those of the executive and legislative branches and possessed capabilities that the executive and legislative branches lacked.
Just as Kalven and Rosenfield anticipated, the federal courts have been able to carry out tasks that no other institution in our society can perform, and yet, accomplishing these tasks is necessary to provide remedies to individuals and institutions in a whole variety of situations. . . . Full Article.
Recommended Citation: Vaughn R. Walker, The Most Efficient Finder of Fact: the Federal District Judge, 69 U. Miami L. Rev. 385 (2015).
