This Article proposes a new Federal Rule concerning the federal courts’ online case management/electronic case filing system (CM/ECF). Whenever a party, the court clerk, or the presiding judge in a civil lawsuit electronically files a document, the Model Rule requires her to answer standardized online questions about that document. These questions are limited to indisputable factual information about case-related outcomes. By answering these questions, the filer codes research variables contemporaneously with the filing of every document. Such mandatory contemporaneous coding would provide comprehensive, reliable, and inexpensive descriptive empirical data6 for evidence-based rulemaking. This Federal Courts CM/ECF Descriptive Dataset should be publicly available.
Part I of this article explains why evidence-based policymaking needs not only objective descriptive data to provide a universal baseline for policy evaluation but also a paradigm shift in the way evidence is viewed and used in policymaking. Part II reviews the history of empirical research of federal civil rulemaking from its humble beginning, through its acceptance and institutionalization, to today’s so-called “New Legal Realist” or “Empirical Legal Studies” movement. Part III summarizes the CM/ECF revolution in the federal courts and explains how contemporaneous coding can code more federal cases at less cost than current methods. Finally, Part IV explains the proposed empirical coding Model Rule and provides sample coding outcomes.
Recommended CitationWill Rhee, Evidence-Based Federal Civil Rulemaking: A New Contemporaneous Case Coding Rule, 33 Pace L. Rev. 60 (2013)
Available at: https://digitalcommons.pace.edu/plr/vol33/iss1/3