The restrictive ethos in civil procedure

George Washington Law Review

Volumn 78, Issue 2, 2010, Pages 353-373

  Benjamin Spencer, A ^a  

^a WASHINGTON AND LEE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950663029     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (145)

1. Rules of Civil Procedure for the district Courts of the United States: Hearing on H.R. 8892 Before the H. Comm. on the Judiciary, 75th Cong. 2 (1938) (statement of Homer Cummings, Att'y Gen. of the United States).
2. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 439 (1986) ("Sobered by the fate of the Field Code, Dean Clark and the other drafters of the Federal Rules set out to devise a procedural system that would install what may be labelled the 'liberal ethos,' in which the preferred disposition is on the merits, by jury trial, after full disclosure through discovery.").
3. I have noted the advent of a restrictive ethos in civil procedure in a previous writing. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 479-483 (2008) (suggesting that a move away from notice pleading represented "the latest and perhaps final chapter in a long saga that has moved the federal civil system from a liberal to a restrictive ethos").
4. By dialectical analysis I mean an attempt to resolve the apparent contradictions between the components of the liberal ethos and the restrictive ethos to determine whether there is indeed a cooperative relationship between the two that can be understood as their synthesis.
5. See id at 479.
6. A uniform nationwide system of procedure facilitated the development of litigators who could handle cases across the country, which in turn made it a much simpler matter for party litigants to retain competent counsel to represent their cause in the federal courts. Uniformity likely reduced the costs of federal litigation (at least initially), given that less time and effort had to be spent identifying applicable local procedural rules or retaining a local specialist who could help navigate those rules.
7. Conley v. Gibson, 355 U.S. 41, 47-48 (1957).
8. Eric K. Yamamoto, Efficiency's Threat to the Value of Accessible Courts for Minorities, 25 HARV. CR.-CL. L. REV. 341, 356-357 (1990). Recent developments on the pleading front - which call into question the idea of notice pleading and portend an era of more serotinous review of pleadings - are discussed below in Part II as an element of the restrictive ethos.
9. See 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 11.03 (3d ed. 2009) ("The 1993 amendments ... clarified and liberalized the standard for complying with Rule 11.").
10. This postponement of judgment day until after discovery is facilitated in part by Rule 56(f), which provides: If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. FED. R. QV. P. 56(f). It must be noted, however, that to the extent plaintiffs are required to offer specific facts prior to discovery under the rule of Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007),
11. and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) - the Supreme Court's most recent pleading decisions - this traditional allowance may be eroding. Twombly's and Iqbal's contribution to the restrictive ethos is discussed below.
12. See infra notes 46-49, 82-86 and accompanying text.
13. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) ("[T]his lawsuit involves claims averaging about $100 per plaintiff; most of the plaintiffs would have no realistic day in court if a class action were not available.");
14. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 338 (1980) ("The use of the class-action procedure for litigation of individual claims may offer substantial advantages for named plaintiffs; it may motivate them to bring cases that for economic reasons might not be brought otherwise."). Further, requiring plaintiffs to opt-out rather than opt-in for damages in class actions facilitates access because plaintiffs in such cases with meager individual claims would otherwise be much less likely to participate in and enjoy the fruits of a class-action suit.
15. Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of die Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356, 397-398 (1967) ("[Requiring the individuals affirmatively to request inclusion in the lawsuit would result in freezing out the claims of people - especially small claims held by small people - who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step.").
16. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.").
17. Jeffrey W. Stempel, Politics and Sociology in Federal Civil Rulemaking: Errors of Scope, 52 ALA. L. REV. 529, 535-36 (2001) ("'Fishing expeditions' were to be allowed in the interests of developing facts in a relatively efficient way so that legal disputes could be determined in light of maximum factual information.");
18. Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Dbcovery Rules, 39 B.C. L. REV. 691, 697-700 (1998);
19. see abo Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.");
20. In re Sealed Case No. 98-3077, 151 F.3d 1059, 1069 (D.C. Cir. 1998) ("An overriding interest in the revelation of truth creates a need for free and open access to evidence ...."). By not making admissibility as evidence the standard for discoverability, and not requiring leave of the court to take depositions (both a result of the 1946 amendments to the Federal Rules), discovery was broadened beyond its initial scope. See Subrin, supra, at 736-37. The 1970 amendments went further in that direction by making insurance policies discoverable, eliminating the good-cause requirement for document production, permitting the discovery of expert witnesses and their supporting materials, and providing sanctions for noncompliance with one's discovery obligations. See Stempel, supra, at 540-541
21. To reinforce the notice-pleading standard, Rule 8(e) indicates: "Pleadings must be construed so as to do justice." FED. R. QV. P. 8(e).
22. FED. R. QV. P. 15(a)(2) (providing that courts "should freely give leave [to amend pleadings] when justice so requires").
23. FED. R. QV. P. 50.
24. FED. R. QV. P. 59.
25. FED. R. QV. P. 60.
26. JAY TIDMARSH & ROGER H. TRANGSRUD, COMPLEX LITIGATION: PROBLEMS IN ADVANCED CIVIL PROCEDURE 6-7 (2002);
27. see, e.g.. FED. R. QV. P. 15 (delineating the conditions under which a court may allow a party to amend or supplement its pleadings); 28 U.S.C. § 1404 (2006) (permitting a court to transfer a civil action to another venue "in the interest of justice").
28. See, e.g., Lewis v. Lynn, 236 F3d 766, 767 (5th Cir. 2001) (per curiam) ("[D]efault judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations.");
29. Katzson Bros. v. EPA, 839 F.2d 1396, 1399 (10th Cir. 1988) (stating "default judgments are not favored by courts").
30. See Pulliam v. Pulliam, 478 F.2d 935, 936 (D.C. Cir. 1973) (noting that in the context of a default judgment "a court should liberally allow relief under" Rule 60(b) because "a resolution on the merits is preferable to a judgment by default").
31. FED. R. QV. P. 1 (establishing that the Federal Rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding").
32. Cf. 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1202 (3d ed. 2004) ("The relevant facts may be determined by discovery.... The only function left to be performed by the pleadings alone is that of notice." (footnote omitted)).
33. See FED. R. QV. P. 12(g)-(h).
34. See FED. R. QV. P. 26 advisory committee's notes to 1993 amendments ("[T]he experience of the few state and federal courts that have required pre-discovery exchange of core information such as is contemplated in Rule 26(a)(1) indicates that savings in time and expense can be achieved ....").
35. The term "formal access" is used here in distinction from "practical access," with the former concept reflecting the provision in the rules for the compelled exchange of all relevant information and the latter describing the ability actually to obtain desired materials through discovery.
36. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) (noting that "[u]nder [discovery] rules, the presumption is that the responding party must bear the expense of complying with discovery requests"). Recent electronic-discovery reforms - creating the prospect that a requesting party might have to shoulder some of the expense of production where hard-to-recover electronically stored information is involved - represent a move in the restrictive direction discussed below.
37. See FED. R. QV. P. 26(b)(2)(B) (permitting a court to set forth conditions for the discovery of electronically stored information from inaccessible sources).
38. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) ("Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." (footnote omitted)).
39. Blair v. Cleveland Twist Drill Co., 197 F.2d 842, 845 (7th Cir. 1952) ("Rules 13 and 14 are both intended to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, thus administering complete and evenhanded justice expeditiously and economically.");
40. see also Lasa per L'Industria del Marmo Societa per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir. 1969) ("The words 'transaction or occurrence' are given a broad and liberal interpretation in order to avoid a multiplicity of suits.").
41. S. Constr. Co. v. Pickard, 371 U.S. 57, 60 (1962) (per curiam). The quoted "shall" language of Rule 13(a) was replaced with the thought-to-be-more-modern "must" as part of the restyling amendments that took effect December 1, 2007.
42. See Michelle S. Simon, Defining the Limits of Supplemental Jurisdiction Under 28 U.S. C. § 1367: A Hearty Welcome to Permissive Counterclaims, 9 LEWIS & CLARK L. REV. 295, 298 (2005) ("[Supplemental jurisdiction promotes fairness and judicial economy, and complements the liberal joinder rules of the Federal Rules of Civil Procedure.").
43. -7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1652 (3d ed. 2001).
44. See, e.g., Laurens Walker, The Other Federal Rules of Civil Procedure, 25 REV. Lmo. 79, 85 (2006) ("Rule 8's near elimination of any meaningful requirement that plaintiffs initially apprise the court of a basis for relief provoked judicial hostility from the very beginning."). In 1952 the Ninth Circuit Judicial Conference voiced this hostility by adopting a resolution proposing that Rule 8(a)(2) be amended to read, "(2) a short and plain statement of the claim showing that the pleader is entitled to relief, which statement shall contain the facts constituting a cause of action."
45. Claim or Cause of Action: A Discussion on the Need for Amendment of Rule 8(a)(2) of the Federal Rules of Civil Procedure, 13 F.R.D. 253, 253 (1953).
46. See FED. R. QV. P. 23(b)(3).
47. Lepucki v. Van Wormer, 765 F.2d 86, 87 (7th Cir. 1985) (per curiam);
48. see abo Selvy v. Dep't of Hous. & Urban Dev., 371 F. Supp. 2d 905, 908 (E.D. Mich. 2005) ("[A]lthough open access to the Courts is essential,... at a certain point, a '[c]ourt's goal of fairly dispensing justice becomes compromised when [it] is forced to devote its limited resources to the processing of repetitious and frivolous requests.'"
49. (quoting Zatko v. California, 502 U.S. 16, 17 (1991) (per curiam));
50. Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. LJ. 1393, 1396 (1992) ("These observers [including many judges and some writers] contended that lawyers and litigants were filing a substantial number of civil cases, too few of which had merit.").
51. D. Michael Risinger, Another Step in the Counter-Revolution: A Summary Judgment on the Supreme Court's New Approach to Summary Judgment, 54 BROOK. L. REV. 35, 35 (1988) ("[T]here seems to be an emerging consensus that federal civil procedure is in the midst of a counterrevolution ....").
52. Stephen N. Subrin, Teaching Civil Procedure While You Watch It Dbintegrate, 59 BROOK. L. REV. 1155, 1158 (1993).
53. Simon H. Rifkind, Are We Asking Too Much of Our Courb?, in THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE 51, 61 (A. Leo Levin & Russell R. Wheeler eds., 1979).
54. FED. R. QV. P. 16(c)(2) ("[T]he court may consider and take appropriate action on the following matters: formulating and simplifying the issues, and eliminating frivolous claims or defenses ....").
55. Tobias, supra note 35, at 1396 ("Many judges participated more actively in expediting dispute resolution. They used pretrial conferences to set lawsuits' pace, to structure questions at issue, or to foster settlement, concomitantly experimenting with Alternative Dispute Resolution (ADR).").
56. See FED. R. QV. P. 11, 28 U.S.C. app. 575 (1988) (amended 2007);
57. FED. R. QV. P. 11 advisory committee's notes to 1983 amendments ("The new language is intended to reduce the reluctance of courts to impose sanctions...."). Rule 11 was amended in 2007 to put the imposition of sanctions within the discretion of the court once again. See FED. R. QV. P. 11(C).
58. Cf. Yamamoto, supra note 8, at 397 ("A rule structured to deter all frivolous filings may be neutral by its terms and nevertheless partial in its effects. Certain types of potential litigants may be more severely impacted because their social situation generates disproportionate numbers of claims deemed frivolous by current norms.").
59. See Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. PA. L. REV. 1925, 1938 (1989) ("We also know that for the same one-year period [June 30, 1987, through July 1, 1988] in the Third Circuit, Rule 11 had a disproportionately adverse impact on civil rights plaintiffs, in that civil rights plaintiffs, their lawyers, or both were sanctioned at a rate (47.1%) far higher than the rate for plaintiffs as a whole (15.9%), and higher still than the rate for plaintiffs in non-civil rights cases (8.45%).");
60. see abo Danielle Kie Hart, Still Chilling After All These Years: Rule 11 of the Federal Rules of Civil Procedure and lb Impact on Federal Civil Righb Plaintiffs After the 1993 Amendments, 37 VAL. U. L. REV. 1, 12-13 (2002) ("Several informal and formal studies of Rule 11 were conducted. The early studies found that plaintiffs were sanctioned much more frequently than defendants, particularly in civil rights cases." (footnote omitted)). But see id at 13-15 ("More recent studies provide somewhat conflicting information.... In one study, conducted by the Federal Judicial Center in 1990 (the "FJC study"), federal district court judges were questioned. In another study, conducted by the American Judicature Society and published in 1992 (the "AJS study"), attorneys practicing in three federal circuits were surveyed.... [T]he FJC study, which focused on federal district court judges' reactions to Rule 11, concluded that sanctions were sought more often against plaintiffs than defendants and that motions for sanctions against plaintiffs were more likely to be granted than those against defendants. The FJC study also concluded, however, that civil rights plaintiffs were not disproportionately impacted by Rule 11. Like the FJC study, the AJS study also found that plaintiffs and their counsel were the target of Rule 11 sanction activity to a far greater extent than defendants and their counsel. Unlike the FJC study, however, the AJS study concluded that civil rights cases were disproportionately impacted by Rule 11." (footnotes omitted)).
61. Professor Roy Brooks has commented as follows on the phenomenon of heightened pleading in the civil-rights context: From a [Critical Race Theory] perspective, application of any heightened pleading standard to civil rights cases constitutes racial subordination. The heightened pleading standard disadvantages the civil rights plaintiff by imposing the difficult, if not impossible, burden of making specific factual allegations about events known only to the defendant. The defendant is not required to disclose this information to the plaintiff until discovery, yet the plaintiff is forced to plead such unknown facts to prevent the dismissal of her civil rights claim. The heightened pleading standard, therefore, means that civil rights plaintiffs are required to plead facts that non-civil rights plaintiffs are not expected to know prior to discovery.
62. Roy L. Brooks, Critical Race Theory: A Proposed Structure and Application to Federal Pleading, 11 HARV. BLACKLETTER LJ. 85, 107 (1994) (footnote omitted).
63. See Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 988 (2003);
64. see abo Phyllis Tropper Baumann, Judith Olans Brown & Stephen N. Subrin, Substance in the Shadow of Procedure: The Integration of Substantive and Procedural Law in Title VII Cases, 33 B.C. L. REV. 211, 243-52 (1992).
65. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) ("[I]mposing the Court of Appeals' heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'");
66. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) ("We think that it is impossible to square the 'heightened pleading standard' applied by the Fifth Circuit in this case with the liberal system of 'notice pleading' set up by the Federal Rules.");
67. Conley v. Gibson, 355 U.S. 41, 47 (1957) ("[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases bis claim.");
68. see abo Pratt v. Tarr, 464 F.3d 730 (7th Cir. 2006) (rejecting heightened pleading standard in prisoner civil-rights case based in part on the foregoing Supreme Court cases).
69. But see Dura Pharm. Inc. v. Broudo, 544 U.S. 336, 347 (2005) ("We concede that ordinary pleading rules are not meant to impose a great burden upon a plaintiff. But it should not prove burdensome for a plaintiff who has suffered an economic loss to provide a defendant with some indication of the loss and the causal connection that the plaintiff has in mind." (citation omitted)).
70. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
71. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
72. Id. at 1950 (articulating a need, at the pleading stage, for factual allegations that "plausibly" suggest entitlement to relief). Opinions differ on the import of Twombly, although there seems to be some support for the notion that it has had a predictably adverse impact on prospective civil rights claims.
73. See A. Benjamin Spencer, Pleading Civil Rights Claims in the Post-Conley Era, 52 How. LJ. 99, passim (2008) [hereinafter Spencer, Pleading Civil Righb Claims] (discussing post-Twombly treatment of civil rights complaints);
74. see abo Kendall W. Hannon, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1815 (2008) ("[T]he one area in which this study does show a significant departure from previous dismissal practice is the civil rights field." (emphasis omitted)). Professor Bone, however, argues that the change wrought by Twombly is not as dramatic as others, including myself, have suggested.
75. Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 878 (2009) ("Twombly's pleading standard neither signals a return to code fact pleading nor represents a sharp break from the vision of the 1938 Federal Rule drafters, as some critics have argued.").
76. Propound the view that Twombly works a major change in pleading doctrine in Plausibility Pleading, supra note 3, at 49, and touch on Professor Bone's views in Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 24 (2009).
77. Private Securities Litigation Reform Act of 1995, Pub. L. No.104-67, 109 Stat. 737 (codified at 18 U.S.C. § 1964 and in scattered sections of 15 U.S.C).
78. See 15 U.S.C. § 78u-4(b)(1)-(2) (2006);
79. Leslie M. Kelleher, Taking "Substantive Righb" (in the Rules Enabling Act) More Seriously, 74 NOTRE DAME L. REV. 47, 60 (1998) ("The strict pleading requirement of the [Private Securities Litigation Reform Act]... is designed to favor defendants over plaintiffs in securities lawsuits, not to implement some carefully planned vision of the procedural system.").
80. See, e.g., Bell v. City of Topeka, 279 F. App'x 689, 692 (10th Cir. 2008) ("[A] plaintiffs designation of an unknown defendant... in the original complaint is not a formal defect of the type [Rule 15(c)(1)(C)] was meant to address, and a later amendment that specifically names that defendant does not relate back to the original complaint." (internal quotation marks and citation omitted));
81. see abo Moore v. Tennessee, 267 F. App'x 450, 455 (6th Cir. 2008) ("In this court, a plaintiffs lack of knowledge pertaining to an intended defendant's identity does not constitute a 'mistake concerning the party's identity' within the meaning of Rule 15(c)."). The Moore court cited cases from seven other circuit courts that were in accord with its judgment. See id.
82. Many may recall how this interpretation of the relation-back rule prevented an alleged victim of police brutality from bringing suit against named police officers in Worthington v. Wilson, 790 F. Supp. 829, 834-35 (CD. IU. 1992), affd, 8 F.3d 1253 (7th Cir. 1993).
83. In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court held that there is no requirement that a "moving party support its motion [for summary judgment] with affidavits or other similar materials negating the opponent's claim." Id at 323.
84. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Court held that the substantive evidentiary standard of proof applicable at trial applies to the summary judgment decision.
85. Id. at 252.
86. The third case in the trilogy, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), stated that "if the factual context renders respondents' claim implausible - if the claim is one that simply makes no economic sense-respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Id at 587. Although these decisions would tend to make summary judgment motions easier to assert and more daunting for plaintiffs, a study by the Federal Judicial Center claims that there is not much evidence supporting the idea that the Celotex trilogy led to an increase in such motions.
87. See Joe S. Cecil et al., A QuarterCentury of Summary Judgment Practice in Six Federal District Courts, 4 J. EMPIRICAL LEGAL STUD. 861, 906 (2007).
88. See ADVISORY COMM. ON FED. RULES OF CIVIL PROCEDURE, JUDICIAL CONFERENCE OF U.S., REPORT ON PROPOSED AMENDMENTS TO RULES 26 AND 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE 21-56 (2008), available at http://www.uscourts.gov/rules/ Reports/CV-Report.pdf. The proposed amendments include a revision to the process surrounding Rule 56 motions, referred to as a "point-counterpoint procedure." Id at 24.
89. See Letter from Stephen B. Burbank, Professor of Law, Univ. of Pa. Law School, to Peter G. McCabe, Sec'y, Comm. on Rules of Practice & Procedure, Admin. Office of the U.S. Courts, at 2, 6-8 (Jan. 28, 2009), available at http://ww.uscourts.gov/rules/2008%20Comments%20Committee%20Folders/ CV%20Comments%202008/08-CV-145-Comment-Burbank.pdf (pointing out the potential problems of cost, delay, frustration of the jury right, and strategic gamesmanship that could flow from imposition of the point-counterpoint procedure proposed in amended Rule 56).
90. See, e.g, Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005) ("The predominance element requires a finding that common issues of law or fact 'predominate over any questions affecting only individual members.' [Rule 23(b)(3).] This requirement, although reminiscent of the commonality requirement of Rule 23(a), is 'far more demanding' because it 'tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'"
91. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-624 (1997))).
92. See, e.g, In re Vioxx Prod. Liab. Litig., 239 F.R.D. 450, 460-462 (E.D. La. 2006).
93. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178-179 (1974) (holding that "[w]here... the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit").
94. See, e.g, In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008) ("Class certification requires a finding that each of the requirements of Rule 23 has been met. Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence. In other words, to certify a class the district court must find that the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 23." (footnote and citations omitted)).
95. Class Action Fairness Act of 2005, Pub. L. No.109-2, 119 Stat. 4 (codified as amended in scattered sections of 28 U.S.C).
96. See S. REP. NO.109-14, at 6 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 7 ("This Committee believes that the current diversity and removal standards as applied in interstate class actions have facilitated a parade of abuses....");
97. id. at 14, 2005 U.S.CCA.N. at 14 ("[S]ome state court judges are less careful than their federal court counterparts about applying the procedural requirements that govern class actions.");
98. see also A. Benjamin Spencer, Anti-Federalist Procedure, 64 WASH. & LEE L. REV. 233, 246 (2007) (criticizing Congress for, through the Class Action Fairness Act, "indulging its anti-federalist impulses to impose on the judicial authority of states based on its dissatisfaction with the results that state courts were producing when they adjudicated state law claims over which they properly had jurisdiction").
99. See Stephen C. Yeazell, The Mbunderstood Consequences of Modem Civil Process, 1994 WIS. L. REV. 631, 655 (1994) ("In a class action involving a large group whose members claim only a small harm was inflicted on each of them, virtually the only important judicial ruling is whether to certify the class under Rule 23, a decision that occurs without even a glance at the merits.").
100. Marrese v. Am. Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1162 (7th Cir. 1984) (en banc), rev'd, 470 U.S. 373 (1985).
101. SECTION OF LITIG., AM. BAR ASS'N, REPORT OF THE SPECIAL COMMITTEE FOR THE STUDY OF DISCOVERY ABUSE 1 (1977).
102. See William H. Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277, 288 (1978) ("Unnecessary intrusions into the privacy of the individual, high costs to the litigants, and correspondingly unfair use of the discovery process as a lever toward settlement have come to be part of some lawyers' trial strategy.");
103. see also ACF Indus., Inc. v. EEOC, 439 U.S. 1081, 1086-87 (1979) (Powell, J., dissenting from denial of certiorari) ("[T]he widespread abuse of discovery ... is a prime cause of delay and expense in civil litigation.... [U]ntil rule changes can be made, there is a pressing need for judicial supervision in this area.");
104. Marrese, 726 F.2d at 1161 ("[W]e may not ignore as judges what we know as lawyers - that discovery of sensitive documents is sometimes sought not to gather evidence that will help the party seeking discovery to prevail on the merits of his case but to coerce his opponent to settle regardless of the merits rather than have to produce the documents.").
105. Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("[T]he deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case.").
106. E.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980) ("As a threshold matter, the court should be satisfied that a claim is not frivolous, a pretense for using discovery powers in a fishing expedition. In this case, plaintiff should show that it can establish jury issues on the essential elements of its case not the subject of the contested discovery.").
107. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007) ("[P]roceeding to antitrust discovery can be expensive.... '[A] district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.'"
108. (quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528 n.17 (1983))).
109. FED. R. QV. P. 26(b)(2)(B).
110. Although the cost concerns associated with the production of inaccessible electronically stored information are valid, the question is whether a rule that presumptively protects such information against production will have an unfair adverse impact on litigants' access to the information they need to make their case.
111. See A. Benjamin Spencer, Jurisdiction to Adjudicate: A Revbed Analysb, 73 U. Qn. L. REV. 617, 618 (2006) (describing personal jurisdiction doctrine as "a confused defendant-centric doctrine obsessed with defendants' intentions, expectations, and experiences of inconvenience").
112. See, e.g., Young v. New Haven Advocate, 315 F.3d 256, 258-59 (4th Cir. 2002) (rejecting effort of plaintiff to assert personal jurisdiction over out-of-state newspaper allegedly placing defamatory content on its universally available website because the Connecticut newspaper did not "aim [its] website or the posted articles at a Virginia audience"). Compare the prevailing American approach to Internet jurisdiction - which favors defendants - with the approach in Australia, which permits a clearly more claimant-oriented approach to personal jurisdiction.
113. See, e.g., Dow Jones & Co. v. Gutnick (2002) 210 C.L.R. 575, 606-07 (stating that victims of defamation may bring claims in the jurisdiction "at the place where the damage to reputation occurs" and that in the Internet context the damage to reputation is done where the claimant downloads the injurious material).
114. See supra notes 61-62 and accompanying text.
115. The corporate-citizenship rule holds that a corporation is only a citizen of its state of incorporation and the state where it has its principal place of business for purposes of diversity jurisdiction. 28 U.S.C. § 1332(c)(1) (2006);
116. see abo Louisville, Cincinnati, & Charleston R.R. v. Letson, 43 U.S. (2 How.) 497 (1844) (holding that a corporation's citizenship is determined independently of the citizenship of its owners). This rule enabled corporations to gain greater access to the thought-to-be-more-hospitable federal courts. The rule correspondingly limited the ability of the adversaries of corporations to proceed against them in state courts.
117. Ankenbrandt v. Richards, 504 U.S. 689, 695, 703 (1992) (noting that "the Constitution does not exclude domestic relations cases from the jurisdiction otherwise granted by statute to the federal courts" but indicating that such cases are excluded based on an interpretation of the federal diversity statute). For criticism of the domestic-relations exception,
118. see generally Jill Elaine Hasday, Federalbm and the Family Reconstructed, 45 UCLA L. REV. 1297 (1998);
119. Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682 (1991).
120. Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007) ("Bowles' failure to file his notice of appeal in accordance with the statute therefore deprived the Court of Appeals of jurisdiction. And because Bowles' error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance with the statute's time limitations.").
121. See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Hbtorical Perspective, 135 U. PA. L. REV. 909, 982 (1987) (noting that "recent trends to amend the Federal Rules as well as the developments in alternative dispute resolution have emerged, at least in considerable part, in response to the chaos" caused by the equitable nature of the rules, which "permitted the participation of virtually unlimited numbers of people in trials and the consideration of a similar array of theories and facts").
122. See, e.g., Stempel, supra note 13, at 537-538 ("Arguably, the very success of these efforts to effect the 1938 Rules were what created the counterrevolution of the late Twentieth Century's discovery reform movements.").
123. DEBORAH R. HENSLER ET AL., RAND INST. FOR CIVIL JUSTICE, CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN 49 (2000) ("[A]ny change in court processes that provides more efficient means of litigating is likely to enable more litigation. Greater efficiency can lower the costs of bringing lawsuits, making it more attractive for litigants to sue and for lawyers to take their cases.");
124. Subrin, supra note 78, at 912, 944 (arguing that the prevalence of equity procedure within the Federal Rules "represents a major contributing factor to many of the most pressing problems in contemporary civil procedure" and that "courts continue to live with the chaotic results of this uncontrolled and uncontrolling procedural system").
125. Professor Yamamoto described the obstructionist perspective on the suppression of undesirable litigation well when he wrote, "From a utilitarian perspective, some indignity suffered by a minority of the populace [denied access to the courts] is an unavoidable and tolerable result of system shrinkage in the interest of efficiency." Yamamoto, supra note 8, at 390.
126. This observation echoes that of Professor Walker, who recently opined that various common-law procedural doctrines, the so-called "Other Rules" of civil procedure, "interact with the 1938 Rules in such a way as to counter the apparent progressive character of the 1938 Rules and produce a functioning system which is not progressive in reality but conservative." Walker, supra note 33, at 80-81 (footnote omitted).
127. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967-69 (2007).
128. See Spencer, Pleading Civil Righb Claims, supra note 49, at 141-155
129. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) ("[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." (citing Twombly, 127 S. Q. at 1965)).
130. Of course, restrictive impulses within the Federal Rules did not originate entirely within the past thirty years. The drafters were aware of the breadth of the system that they were creating and included measures such as the summary judgment device as one way to hold the line against the tenuous claims that their liberal pleading rules might allow. See Stephen B. Burbank, Vanishing Triab and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 603 (2004) ("Rule 56 was intended to function as an equilibrating device that would discipline the results of notice pleading and profit from those of broad discovery."). By emphasizing the more recent developments in the direction of restrictiveness, I simply mean to suggest that explicit commitment to the restrictive ethos appears to have, over time, intensified, gained strength, and come to dominate those provisions that would otherwise be access-promoting in the Federal Rules.
131. As I explain below, I do not define the conflict between dominant interests and social out-groups in purely racialized, black-white terms, although others have done so. See, e.g., Brooks, supra note 44, at 111 ("Society and its institutions, including its legal system, express a white world-view, a perspective that necessarily operates to the benefit of whites at the expense of people of color. The federal courts' treatment of civil rights claims, including Rule 11 sanctions, is merely further evidence of this built-in bias." (footnote omitted)). Racial minorities asserting certain claims certainly fit within the out-group category but other groups, not defined simply by race (e.g., women, gays, the elderly, consumers, small investore), fall within this category as well.
132. Yamamoto, supra note 8, at 345 ("[The] procedural system [is] hospitable to litigants with disputes involving well-settled legal principles.").
133. Id. (footnote omitted).
134. It is worth noting that since the appointment of Chief Justice Warren Burger in 1969, the Chief Justices - and thus the persons in control of the membership of the various rulemaking committees - have been appointed by Republican presidents, who have tended to support litigation-reform efforts more than the interests of pro-plaintiff trial attorneys and consumer groups. See, e.g., Edward A. Purcell, Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, 156 U. PA. L. REV. 1823, 1899 (2008) ("During Reagan's presidency, Republicans introduced 'tort reform' bills in Congress with increasing frequency ....");
135. Stephen Labaton, Bush CaIb for Change in Handling Asbestos Lawsuib, N.Y. TIMES, Jan. 8, 2005, at A12. Professor Burbank points out that the civil-rules committee is dominated by judges rather than members of the bar, an imbalance that might put too heavy a thumb on the scale in favor of institutional interests that may favor only certain kinds of procedural reform.
136. See Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1714-15 (2004) ("Under Chief Justice Warren Burger, however, the Civil Rules Advisory Committee came to be heavily dominated by judges selected by the Chief Justice. This imbalance has continued....").
137. -9i Yamamoto, supra note 8, at 345 ("Reforms that discourage court access for minorities asserting 'marginal' rights claims reflect value judgments about the purposes of adjudication and the desirability of broad-based participation in the litigation process.").
138. FED. R. QV. P. 9(b);
139. -5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: OVIL § 1296 (3d ed. 2004) (discussing, inter alia, the considerations that lead to the adoption of heightened pleading standards).
140. See Marcus, supra note 2, at 471-472
141. Georgene M. Vairo, Rule II: A Critical Analysb, 118 F.R.D. 189, 200 (1988) ("Rule 11 is being used disproportionately against plaintiffs, particularly in certain types of litigation such as civil rights [cases], employment discrimination [cases], securities fraud cases brought by investors, and antitrust cases brought by small companies.").
142. See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 HARV. L. & POL'Y REV. 103, 128 (2009) ("[P]retrial adjudication particularly disfavors employment discrimination plaintiffs."); cf. Cecil et al., supra note 54, at 886-89 (noting the rise of summary judgment grants to defendants in civil rights cases, which presumably include employment discrimination claims).
143. See Burbank, supra note 90, at 1703-06 (describing Congress's increasing involvement in tinkering with civil procedure as it came to understand procedure's impact on its substantive policy goals);
144. Richard L. Marcus, Of Babies and Bathwater: The Prospecb for Procedural Progress, 59 BROOK. L. REV. 761, 771-776 (1993) (discussing politicization of procedure and the "hidden agendas" of some rule reformers who seek to further their own substantive interests through civil-litigation reform).
145. For example, a cursory look at the membership of the current Advisory Committee on Civil Rules, which is available at http://www.uscourts.gov/roles/ Members-List-07-2009.pdf, reveals the presence of only one plaintiffs' attorney and one judge who was appointed to the bench by a Democrat. Defense lawyers, former prosecutors, and Republican-appointed judges (a good number of whom clerked for Chief Justice Rehnquist) dominate the committee.