Past and Potential Uses of Empirical Research in Civil Rulemaking

In the words of an experienced observer of and participant in the civil rulemaking process, a “group of elite lawyers and law professors who acted with little empirical evidence”1 drafted the original Federal Rules of Civil Procedure (Rules).2 During the first fifty years after adoption of the rules, rulemakers rarely commissioned or used empirical research to support their revisions.3 Until the last decade or so,