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Publication Date

5-2006

Document Type

Article

Abstract

These reflections seek to situate this most excellent Symposium in the rulemaking process. All contributors are working with an eye to that process. Their goal is to achieve a better understanding of how offer-of-judgment rules actually work in practice. The major focus is on Rule 68 of the Federal Rules of Civil Procedure as it has affected practice in actions brought under fee-shifting statutes, but Professor Yoon's article adds insights into state practice in the very different world of automobile accident claims. There is no reason to attempt to summarize or synthesize the papers or discussions that stand so well on their own. Taken together, they illustrate many ways in which Rule 68 might be revised. Rule revision, however, is not an easy task. Among the many barriers to rule revision, three will be described here in relation to Rule 68. Any proposed amendment must overcome the inertia that protects against the costs of continual tinkering and the risks of mistaken innovation. Some proposals, and many Rule 68 proposals are prominent among them, also test the uncertain line between "general rules [of] practice and procedure" and rules that improperly "abridge, enlarge[,] or modify any substantive right." Finally, if revisions are to be made, just how far to push toward detailed dictates for every foreseeable problem remains to be decided.

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