Reining in the American Litigator: The New Role of American Judges

The American lawyer has long seemed unique in the world-almost a cowboy figure doing justice against the odds. The American judge, on the other hand, has remained a background figure, rarely taking the initiative and serving instead as a passive, impartial umpire in the contest of the lawyers. During the last half-century, however, the latitude accorded the American lawyer has increasingly been reined in by American judges. Although there has been resistance to this trend, it shows no signs of abating.

This paper begins with a very general sketch of the role of attorneys in U.S. society and government, and then examines the procedural features of American litigation until the mid-twentieth century, which placed primary emphasis on the lawyers. It then explains how both procedural changes and substantive shifts prompted increased judicial supervision, which came to be known as managerial judging. It concludes by reviewing American objections to these shifts.