Articles & Chapters

From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts

Edward A. Purcell Jr., New York Law School


The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available. Neither changes in the text of the rules nor new discoveries about their original intended meaning justified those decisions. Indeed, the reinterpretations conflicted with the stated purposes of those rules and contradicted the Court’s own repeated acknowledgments that it has no authority to change the meaning of any Federal Rule once Congress has adopted it. This article examines those changed interpretations, shows that they brought parallel anti-plaintiff results, and demonstrates that those results are consistent with the practical social results that flow from a wide variety of other decisions of the Rehnquist and Roberts Courts. The decisions construing Rules 8, 23, and 56 advance the same anti-plaintiff policies that mark the Court’s decisions restricting or defeating tort, antitrust, civil rights, securities, environmental, and employment discrimination claimants. The article argues that the Federal Rules decisions of the Rehnquist and Roberts Courts are not only compatible in their social results with their decisions in those other areas but that they all spring from the same extra-legal source, the commitments of the Court’s conservative Republican justices to their party’s market-based ideologies. Although those justices commonly assert text, tradition, and original meaning as justifications for their decisions, they have been wholly inconsistent in applying those methods. The consistency of their jurisprudence lies not in their application of any rigorous legal method but in their ideologically-rooted desire to block certain kinds of lawsuits and to protect from liability state governments, state and local officials, and corporate defendants.