In 1938, the Federal Rules of Civil Procedure were adopted. Their adoption represented a triumph of uniformity over localism. The lengthy debate that prefaced the adoption of the rules focused upon the value of a national set of rules, as opposed to the then-governing practice of "conformity," in which local federal practice mirrored that of the state in which the federal courts sat. Although many different arguments were offered in favor of the federal rules, at bottom the rules' proponents carried the day by arguing that procedure ought to be the same across the federal courts and the cases those courts heard.
Almost sixty years later, the central accomplishment of uniform federal rules is in serious jeopardy. The trend today is away from uniformity and toward localism, though perhaps not consciously so. The federal rules themselves permit individual district courts to enact their own local rules. While concern about the impact of local rules upon the uniformity of the system of federal rules is long standing, recent years have seen a proliferation in these local rules. Although the ostensible purpose of these rules is not to disrupt national rule uniformity, that often is their impact. Then, in 1990, Congress adopted the Civil Justice Reform Act ("CJRA7). The purpose of the CJRA is to achieve broad based reforms in the way federal civil cases are handled by lawyers and the courts. The primary mechanism of the CJRA, however, is individual rulemaking by the ninety-four separate district courts and their adjunct advisory committees established under the CJRA to effect reform. Further, in 1993 the Federal Rules of Civil Procedure were amended in significant ways, particularly with regard to discovery procedure. Framed against the backdrop of the CJRA, the discovery amendments offer an opt-out for any district court that chooses not to participate. Many district courts have taken this option, formulating their own variant of the discovery process. Thus, discovery also now operates quite differently in each district.
Chemerinsky, Erwin and Friedman, Barry
"The Fragmentation of Federal Rules,"
Mercer Law Review: Vol. 46:
2, Article 8.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss2/8