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Volume 108, Issue 7


Federal Rules of Private Enforcement

David L. Noll & Luke P. Norris

Professor of Law and Associate Dean for Faculty Research and Development, Rutgers Law School & Associate Professor of Law, University of Richmond School of Law.

8 Jan 2024

The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between “substantive” rights and the “procedure” used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as “private enforcement,” is the engine for statutory regimes governing the workplace, the consumer economy, securities markets, the environment, civil rights, and more. Yet while the nature of federal court litigation has changed dramatically in the decades since the Rules were first promulgated, the Rules and the institutions through which they are made never adapted. The Rules thus perform a role—providing the infrastructure for a litigation landscape dominated by private enforcement—far different from the one they initially performed.

This Article unearths the history of how the Federal Rules of Civil Procedure became federal rules of private enforcement but were never adapted for their new task. It then explores how that transformation challenges foundational assumptions of federal civil procedure. In delegating authority “to prescribe general rules of practice and procedure,” Congress does not only charge the judiciary with making rules to resolve disputes, but also with making rules that enable privately enforced regulatory regimes to function. The Rules and the court rulemaking process, however, continue to be driven by assumptions inherited from the founding era of federal court rulemaking. We posit that the disconnect between the Rules’ original design and their modern function explains many of the most significant pathologies in federal court rulemaking today. We further argue that acknowledging this disconnect—and rethinking the Rules to support their private enforcement function—points the way to a reinvigorated rulemaking system for the modern litigation state. By recasting the relationship between the Rules and private enforcement, our account supplies fresh rationales for court rulemaking, sheds new light on the functions today’s rulemakers perform, and justifies reforms that would align the rulemaking process and the Rules themselves with the laws they enforce. This Article thus seeks to update the Federal Rules of Civil Procedure in light of the function they have taken on in the near-century since they came into effect and, in doing so, seeks to make them a modern, enduring achievement.

To read this Article, please click here: Federal Rules of Private Enforcement.