Judge, Professor Take on New Roles on Rules Committees

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Melissa Heelan Stanzione

Third Circuit Judge Michael A. Chagares was appointed chief of the Advisory Committee on Appellate Rules in April and has “jumped in with both feet,” he told Bloomberg BNA.

Chief Justice John G. Roberts Jr. named Chagares to replace Justice Neil M. Gorsuch, who stepped down as chair once he was confirmed to the U.S. Supreme Court in April.

Chagares said he wants to push for making appellate practice more efficient and consistent with Federal Rule of Civil Procedure 1, which calls for the “just, speedy and inexpensive determination of every action.”

He has served on the Third Circuit since he was nominated by President George W. Bush and confirmed by the Senate in 2006. Before that, he worked in private practice and served as an adjunct professor at Seton Hall School of Law, Newark, N.J.

Professor A. Benjamin Spencer had no idea he was under consideration to replace Professor Robert Klonoff, a member of the Advisory Committee on Civil Rules, until he received a phone call from the Administrative Office of the U.S. Courts in May.

Spencer teaches civil procedure at the University of Virginia School of Law, Charlottesville, Va., including an advanced course that focuses on the rulemaking process.

It’s “amazing” to have the chance to become a part of something I focus on, he told Bloomberg BNA.

Spencer has been at the University of Virginia since 2014. Before that, he taught at Washington and Lee University School of Law and the University of Richmond School of Law. He also clerked for Judge Judith W. Rogers of the U.S. Court of Appeals for the District of Columbia Circuit.

Fair System

Spencer’s three-year term begins Oct. 1 and he anticipates he will evaluate proposals for civil rules amendments “with an eye to what’s fair and efficient for all sides,” he said.

Civil procedure is so important for ensuring a fair system because it’s what makes the law real, Spencer said.

“The law is just words and you have to have the procedure to implement it,” he said.

Spencer’s professional focus is the extent to which reforms affect access to the courts, he told Bloomberg BNA.

The balance “is off” right now and “a lot of threshold obstacles are being placed in the path of plaintiffs,” Spencer said.

However, if the system were tilted in favor of plaintiffs “too greatly,” he would criticize that.

“I’m not on a side” and can meet people in the middle, Spencer said.

No ‘Willy Nilly’

Chagares said that making rules is “challenging work.”

He wants to be sure that everyone “weighs in and is heard and feels like they’ve been heard” at the appellate rules meetings over which he presides.

There are rules out there that people have been applying “for years and years,” so we don’t want to “willy nilly” go out and change things for the sake of changing, Chagares said.

The point is to do something “practical, that makes sense and makes everyone’s life easier,” and that promotes the goals of Rule 1, he said.

One way Chagares, as chair, believes he can help with this mission is to coordinate with the other rules committees to have a consistent set of rules.

All the rules committees should be “on the same page” so that, for example, a word has the same meaning throughout all the rules, Chagares said. The other rules committees are the advisory committees on bankruptcy, civil, criminal, and evidence rules.

Differing Perspectives

Spencer said the committee can’t “have a role as a crusader” because it’s the passive recipient of rule proposals.

Committee decisions are consensus-based, he said.

However, the civil rules committee is dominated by federal judges who “are institutionally small ‘c’ conservative,” Spencer said.

Of the 14 members, 9 are federal judges.

They have their own priorities that “don’t necessarily accord with more radical proposals,” he said.

As a consequence of this composition, “I imagine there’s a lot of deference” from the non-judges and “you have to pick your own battles,” Spencer said.

Chagares views the membership on his committee in a different light.

Part of the “beauty of the system” is the job diversity of the committee members, Chagares said.

The appellate rules committee consists of 8 members, with three judges, three attorneys, and two professors.

There is “a lot of intellectual firepower,” Chagares says of the members of the appellate rules committee.

“I’m leading an incredibly smart, dedicated, and practical group” through the continuous, “careful” study of the appellate rules, he said.

Unexpected Honors

Spencer said he didn’t know he was being considered for the rules committee until he received the phone call in May.

Chagares has been a member of the committee for six years but had no idea he was to become chair.

“It was a surprise,” and a “great honor,” Chagares said.

“I love it! I love rules work,” he said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law