Caroline Cox (Vanderbilt Law School Energy, Environment & Land Use Program) has posted Adapting Civil Procedure on SSRN. Here is the abstract:
Proposals to amend the Federal Rules of Civil Procedure are typically modest in scope or seek to address changing technology. However, recent major hurricanes and the COVID-19 pandemic have pushed the Judicial Conference to consider how the Rules should work in emergencies. The resulting Rule 87—which officially became effective on December 1, 2023—effectively creates alternative versions of select rules when the Judicial Conference makes a finding of an emergency within a judicial district. Although the proposed rule is a step in the right direction, continued attention to the challenges civil litigation faces in the climate change era is necessary.
This Article examines the vulnerability of the Federal Rules of Civil Procedure to climate change and offers a framework for continued adaptation of the Rules to an uncertain world. The Federal Rules, like many areas of the law, rest on assumptions of societal and climatic stability. Climate change threatens this fundamental “stationarity.” Therefore, this Article takes the first steps in an adaptation analysis for the Federal Rules, beginning with the core procedural values that an adaptation plan should protect and an overview of existing stressors to those values. The Article then provides an analysis of how climate change disasters will further undermine efforts to achieve those procedural values. Using natural disasters of the last fifteen years as case studies, the Article evaluates how the growing intensity, frequency, and unpredictability of climate change disasters will exacerbate existing civil procedure stressors and undermine its stationarity assumptions. The Article concludes with recommendations for both a better approach to reforming civil procedure and some specifications courts and the Judicial Conference should take to address climate disasters. Importing the adaptive management theory to the Judicial Conference will allow the Federal Rules to capitalize on their preexisting resilience and adaptive capacity without risking the widespread use of maladaptive strategies in civil cases after climate disasters. Given the acceleration of climate change and the ever-present need of society's most vulnerable populations to use the courts to secure benefits and protect their rights, such an approach to adapting civil procedure is critical for achieving the Federal Rules' underlying aims.