The limitations of transsubstantive procedure: An essay on adjusting the "one size fits all" assumption

Denver University Law Review

Volumn 87, Issue 2, 2010, Pages 377-406

  Subrin, Stephen N ^a  

^a NORTHEASTERN UNIVERSITY   (United States)

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EID: 78650493471     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (216)

1. E.g., Stephen N. Subrin, Op-Ed, The Law and the Rules, N. Y. TIMES, Nov. 10, 1979, at 23 ("Applying the rules to all cases, big and small, has proved disastrous.... We need a less-expansive process. Otherwise, ordinary disputes will continue to blossom into Federal Cases.") ;
2. Stephen N. Subrin, The Empirical Challenge to Procedure Based in Equity: How Can Equity Procedure Be Made More Equitable, in EQUITY AND CONTEMPORARY LEGAL DEVELOPMENTS 761, 788, 792 (Stephen R. Goldstein ed., 1992) [hereinafter Subrin, Equity More Equitable];
3. Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism, 35 W. ST. U. L. REV. 173, 187 (2007) [hereinafter Subrin, Simplified Procedure];
4. Stephen N. Subrin, Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific Procedure, 46 FLA. L. REV. 27, 41 (1994) [hereinafter Subrin, Substance-Specific];
5. Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns, 137 U. PA. L. REV. 1999, 2038-43, 2048-51 (1989) [hereinafter, Subrin, Federal Rules];
6. Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 985 (1987) [hereinafter Subrin, Historical Perspective]. The possibility of different procedures for some cases for contemporary civil litigation is not "some newfangled idea." Subrin, Substance-Specific, supra, at 55 (citing comments by Benjamin Kaplan when he was Reporter to the Advisory Committee suggesting consideration of different procedures for different cases, as well as similar suggestions by others).
7. Stephen B. Burbank has urged modification of transsubstantive procedure on several occasions. Some of them are listed in Subrin, Substance-Specific, supra, at 28 n. 4. For others who have discussed transsubstantivity, pro and con, see infra note 18. The term "trans-substantive" (many of us do not now use the hyphen) was probably first used by Robert Cover. Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE L. J. 718, 718 (1975).
8. Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-trans-substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067, 2068-69 (1989) ;
9. Geoffrey C. Hazard, Jr., Discovery Vices and Trans-substantive Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2238 (1989).
10. AM. COLL. OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., FINAL REPORT 4 (2009), http://www.du.edu/ legalinstitute/pubs/ACTL-IAALS%20Final%20Report%20Revised%204-15-09.pdf [hereinafter ACTL/IAALS, FINAL REPORT].
11. For the history of David Dudley Field and the Field Code, see Stephen N. Subrin, David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision, 6 LAW & HIST. REV. 311 (1988).
12. The information on the number of states and people covered by the Field Code is found in Subrin, Historical Perspective, supra note 1, at 939 n. 170.
13. See Subrin, Historical Perspective, supra note 1, at 973.
14. For the history of the Federal Rules of Civil Procedure and the Enabling Act that authorized the Rules, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982) and Subrin, Historical Perspective, supra note 1, 943-75. The information on state adoption of the Federal Rules is found in Subrin, Historical Perspective, supra note 1, at 910 n. 4.
15. For the history of the common law procedural system in England, see Subrin, Historical Perspective, supra note 1, at 914-18. A truly magnificent casebook (actually the most beautiful casebook I have ever seen) has just been published examining and explaining in detail (with pictures) the development of the common law and Anglo-American legal institutions.
16. JOHN H. LANGBEIN, RENÉE LETTOW LERNER & BRUCE P. SMITH, HISTORY OF THE COMMON LAW: THE DEVELOPMENT OF ANGLO-AMERICAN LEGAL INSTITUTIONS (2009).
17. For a description of the writ system and common law courts
18. see id. at 85-125. For a description of Chancery and the "Rise of Equity, "
19. see id. at 267-334.
20. HENRY SUMNER MAINE, DISSERTATIONS ON EARLY LAW AND CUSTOM 389 (1886), cited in Subrin, Historical Perspective, supra note 1, at 915 n. 28.
21. For the history of the Equity procedural system in England, see Subrin, Historical Perspective, supra note 1, at 918-21.
22. See id. at 920.
23. See id. at 919.
24. For more detailed critiques of both law and equity, see id. at 917-18, 921, 974-75 and Subrin, Equity More Equitable, supra note 1, in which I compare burdens and benefits of law and equity, rule and discretion. Steve Burbank reminds me that common law pleading (because of the need to fit within the writ) was an invitation to fictional allegations and, coupled with no or little discovery, this led to surprise, ambush, and inefficiency at trial. This point was raised by those arguing for reform of the common law procedural system.
25. Subrin, Historical Perspective, supra note 1, at 933 (alterations in original) (quoting ARPHAXED LOOMIS, HISTORIC SKETCH OF THE NEW YORK SYSTEM OF LAW REFORM IN PRACTICE AND PLEADINGS 16, 25 (1879)).
26. 1848 N. Y. Laws ch. 379, § 120 (2) (71st Sess. Apr. 12, 1848).
27. For the provision, as amended, see 1851 N. Y. Laws ch. 479, § 142 (2), reprinted in THE CODE OF PROCEDURE OF THE STATE OF NEW YORK, FROM 1848 TO 1871, at 104 (1870).
28. For critique of the Field Code and information about the increase to 3, 441 provisions (the Throop Code), see Subrin, Historical Perspective, supra note 1, at 940-42. For a critique and defense of Field and the Field Code, see Subrin, supra note 4, at 338-45. For a description of the difficulties caused by the necessity to determine what was a cause of action, fact, conclusion, ultimate fact, or evidence
29. see, for example, 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. 94 (1938) (statement of Edgar B. Tolman, Secretary, Advisory Comm. on the Rules for Civil Procedure).
30. On the influence of the reformed English procedure and the Judicature Acts of 1873 and 1875, see Subrin, Historical Perspective, supra note 1, at 942-43. This article also gives a detailed description of the historical background of the Federal Rules and the lure of simplicity and equity. See id. at 943-73;
31. see also Janice Toran, 'Tis a Gift to Be Simple: Aesthetics and Procedural Reform, 89 MICH. L. REV. 352 (1990).
32. See generally Subrin, Historical Perspective, supra note 1; Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Discovery Rules, 39 B. C. L. REV. 691 (1998) [hereinafter Subrin, Discovery];
33. Stephen N. Subrin, Charles E. Clark and His Procedural Outlook: The Disciplined Champion of Undisciplined Rules, in JUDGE CHARLES EDWARD CLARK 115 (Peninah Petruck ed., 1991) [hereinafter Subrin, Clark].
34. For a detailed, sophisticated, and recent description of the importance of the separation of procedure and substantive law in order to support the transsubstantive nature of the Federal Rules, see David Marcus, The Past, Present and Future of Trans-substantivity in Federal Civil Procedure, 59 DEPAUL L. REV. (forthcoming 2010) (manuscript at 6 n. 17), available at http://ssrn.com/abstract=1428992 (Marcus provides a "nonexhaustive list of significant discussions of trans-substantivity").
35. Charles E. Clark, History, Systems and Functions of Pleading, 11 VA. L. REV. 517, 542 (1925) (internal quotation marks omitted) (quoting In re Coles, [1907] 1 K. B. 4) ;
36. see also Charles E. Clark, The Handmaid of Justice, 23 WASH. U. L. Q. 297, 297 (1938) ;
37. Charles E. Clark, Procedural Fundamentals, 1 CONN. B. J. 67, 67-68 (1927) ;
38. Charles E. Clark, The Code Cause of Action, 33 YALE L. J. 817, 819 (1924).
39. A collection of Clark's essays even bears the same moniker. PROCEDURE-THE HANDMAID OF JUSTICE: ESSAYS OF JUDGE CHARLES E. CLARK (Charles Alan Wright & Harry M. Reasoner eds., 1965).
40. Clark was actually citing from an English case.
41. See Subrin, Historical Perspective, supra note 1, at 941.
42. For the history of these process and conformity acts, and the critique by Enabling Act proponents about their alleged failings, see Burbank, supra note 6, 1036-42.
43. Conformity Act of 1872, ch. 255, § 5, 17 Stat. 196, 197.
44. In addition to Burbank's description of the pro-Enabling Act position with regard to the process and conformity acts, see Subrin, Historical Perspective, supra note 1, at 957-58 & n. 284.
45. Rules Enabling Act of 1934, Pub. L. No. 73-415, 48 Stat. 1064
46. (codified as amended at 28 U. S. C. § 2072 (2006)). A reliable, thorough, and detailed history of the A. B. A.'s battle to have the Enabling Act adopted is found in Burbank, supra note 6, at 1043-98. I explore the politics and ideology leading to the Enabling Act in Subrin, Historical Perspective, supra note 1, at 943-70.
47. I have told this story in detail in Subrin, Clark, supra note 17, at 116-37.
48. Id. at 138.
49. Much of what we found is explained in detail in Burbank, supra note 6, at 1132-84;
50. Marcus, supra note 18, at 30-35;
51. and Subrin, Historical Perspective, supra note 1, at 973-82.
52. I have discussed this point with both other professors.
53. Burbank, supra note 6, at 1135-36;
54. Subrin, Clark, supra note 17, at 135-37.
55. Subrin, Historical Perspective, supra note 1, at 974.
56. Marcus, supra note 18, at 13.
57. See Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, § 101, 109 Stat. 737, 746-47
58. (codified as amended at 15 U. S. C. § 78u-4 (2006)) (requiring a heightened pleading standard for securities fraud actions). In 1988, at a conference on the fiftieth anniversary of the Federal Rules of Civil Procedure, Professor Judith Resnik explored the political and non-neutral aspects of civil rulemaking.
59. Judith Resnik, The Domain of Courts, 137 U. PA. L. REV. 2219, 2224-27 (1989).
60. For a more recent exploration of the political nature of civil rulemaking, see generally Jeffrey W. Stempel, Politics and Sociology in Federal Civil Rulemaking: Errors of Scope, 52 ALA. L. REV. 529 (2001).
61. Rules Enabling Act of 1934, Pub. L. No. 73-415, 48 Stat. 1064 (codified as amended at 28 U. S. C. § 2072 (2006)).
62. See supra text accompanying note 13.
63. For Clark's views, see Subrin, Historical Perspective, supra note 1, at 962-65.
64. For Sunderland's views on discovery, see Subrin, Discovery, supra note 17, at 714-17.
65. Id. at 693.
66. On the relationship of legal realism to the Federal Rules, see Subrin, Historical Perspective, supra note 1, at 965-66.
67. For this part of the history, see id. at 969-70.
68. Clark was, in fact, appointed by President Franklin D. Roosevelt to the prestigious Second Circuit Court of Appeals in 1939, one year after the Federal Rules of Civil Procedure became law. Stephen N. Subrin, Charles E. Clark, in THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW 107, 108 (Roger K. Newman ed., 2009).
69. Subrin, Historical Perspective, supra note 1, at 972. Professor Thom Main has suggested to me that given the amount in controversy requirement for all cases in the 1930s, and the value of a dollar at the time, there might not have been such a thing as a "small case" in federal court during the period that the Enabling Act was drafted.
70. Professor Stephen Burbank has brought to my attention the work of Sean Farhang, Public Regulation and Private Lawsuits in the American Separation of Powers System, 52 AM. J. POL. SCI. 821 (2008). "[Farhang's] evidence suggests that the phenomenon [of enormous growth of statutory litigation starting in the 1960s] may be the result of conscious congressional choices to empower private litigation through devices such as pro-plaintiff attorney fee-shifting and multiple damage provisions, thereby insulating congressional preferences from an ideologically distant executive (that would be able to subvert those preferences in a system of administrative enforcement)."
71. Stephen B. Burbank, Pleading and the Dilemmas of Modern American Procedure, 93 JUDICATURE 109, 117 (2009).
72. Subrin, Historical Perspective, supra note 1, at 957.
73. Burbank, supra note 41, at 117, 119.
74. For a description of the changes brought by the 1966 amendments to the class action rule, FED. R. CIV. P. 23
75. see STEPHEN N. SUBRIN & MARGARET Y. K. WOO, LITIGATING IN AMERICA: CIVIL PROCEDURE IN CONTEXT 195-98 (2006).
76. 550 U. S. 544 (2007).
77. 129 S. Ct. 1937 (2009).
78. These decisions, when taken together, apparently instruct Federal District Court Judges, upon considering a 12 (b) (6) motion to dismiss, to disregard material in the complaint that the judge deems to be conclusory, and then to decide, looking at what remains in the complaint, whether the claim is plausible. It seems to this author, as it did to the four dissenting Supreme Court Justices in Iqbal, that this is a highly subjective test, destined to lead to unpredictable and unfair results.
79. See id. at 1957 (Souter, J., dissenting). Bills are already being introduced in Congress to reverse the pleading requirement articulated in these cases.
80. For a description of the negative aspects of American discovery, see SUBRIN & WOO, supra note 44, at 143-46.
81. See id. at 147-48, 152. For data showing that the majority of cases has surprisingly little discovery, see Elizabeth G. Thornburg, Giving the "Haves" A Little More: Considering the 1998 Discovery Proposals, 52 SMU L. REV. 229, 246-49 (1999).
82. For the "outlier" position that all discovery should be eliminated, see Loren Kieve, Discovery Reform, A. B. A. J., Dec. 1991, at 79, 79-81.
83. See, e.g., Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1471-1486 (1987) (book review) ;
84. Subrin, Historical Perspective, supra note 1, at 911-912, 973-975.
85. MODEL CODE OF PROF'L RESPONSIBILITY canon 7 (1983) ("A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.").
86. See Subrin, Discovery, supra note 17, at 718-19;
87. Stephen N. Subrin, Discovery in Global Perspective: Are We Nuts?, 52 DEPAUL L. REV. 299, 300 (2002).
88. See Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 787, 869-74 (1980) ;
89. Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 AM. B. FOUND. RES. J. 217, 230-35 (1980) ;
90. Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. REV. 1295, 1303-1305 (1978).
91. Rigorous pleading requirements were required by many Federal District Court judges prior to Twombly and Iqbal. See Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 988-89, 1002 (2003) ;
92. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 434-437, 492 (1986) ;
93. Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. (forthcoming 2010), available at http://ssrn.com/abstract=1487764. This phenomenon of the Supreme Court's following changes in procedure already accomplished by lower court judges can also be seen in expanded managerial judging preceding the amendment to Rule 16 explicitly permitting such expansion, and increased use of summary judgment preceding the Supreme Court triology of cases in 1986.
94. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. OF EMPIRICAL LEGAL STUD. 591, 620 (2004) ;
95. David L. Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. PA. L. REV. 1969, 1992 (1989) ;
96. see also Judith Resnik, Changing Practices, Changing Rules: Judicial and Congressional Rulemaking on Civil Juries, Civil Justice, and Civil Judging, 49 ALA. L. REV. 133, 156, 157 (1997) (noting rule change in the federal courts is frequently preceded by changes made by federal court judges supposedly operating under the previous, contrary rules or statutes).
97. Daubert v. Merrill Dow Pharms., Inc., 509 U. S. 579 (1993).
98. Burbank, supra note 53, at 617-18. ("There probably is sufficient and sufficiently reliable evidence, however, to believe that the rate of case termination as a result of summary judgment rose substantially in federal first-instance courts as a whole in the period from 1960 to 2000, with one plausible (and perhaps conservative) range being from approximately 1.8 percent in 1960 to approximately 7.7 percent in 2000.").
99. A 1983 Civil Litigation Project found that for all cases in which the amount of controversy was over $10, 000, state court was less expensive than either federal court or arbitration. Herbert M. Kritzer & Jill K. Anderson, The Arbitration Alternative: A Comparative Analysis of Case Processing Time, Disposition Mode, and Cost in the American Arbitration Association and the Courts, 8 JUST. SYS. J. 6, 18 (1983) (ironically, for cases between $5, 000 and $10, 000, federal court was the least expensive of the three alternatives). Litigating in federal court is more expensive than in state court.
100. See Class Action Fairness Act of 2001: Hearing on H. R. 2341 Before the H. Comm. on the Judiciary, 107th Cong. 38-39 (2002) (statement of Andrew Friedman, Partner, Bonnett, Fairbourn, Friedman & Balint, P. C.). "Studies have indicated that, generally, individual plaintiffs are likely to find state courts less expensive, more accessible, and easier to navigate."
101. Marc E. Montgomery, Comment, Navigating the Back Channels of Salvage Law: Procedural Options for the Small Boat Salvor, 83 TUL. L. REV. 1463, 1494-95 (2009).
102. "Litigation in federal court is also generally more expensive and time consuming than most state court actions." Gregory M. Cesarano & Daniel R. Vega, So You Thought a Remand Was Imminent?: Post-removal Litigation and the Waiver of the Right to Seek a Remand Grounded on Removal Defects, FLA. B. J., Feb. 2000, at 22, 22, 24. "Removal to federal court made litigation more difficult, complex, expensive, time-consuming, and intimidating for the individual plaintiffs."
103. David A. Luigs, Book Note, 92 MICH. L. REV. 1700, 1702 (1994)
104. (reviewing EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958 (1992)) ;
105. see also Subrin, Simplified Procedure, supra note 1, at 181 n. 35;
106. Michael Ena, Comment, Jurisdictional Issues in the Adjudication of Patent Law Malpractice Cases in Light of Recent Federal Circuit Decisions, 19 FORDHAM INTELL. PROP. MEDIA & ENT. L. J. 219, 256 (2008) ;
107. Kevin N. Tharp, Note, Federal Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals Got It Right, 52 FED. COMM. L. J. 189, 207 (1999) ;
108. Gregory P. Joseph, Trial Balloon: Federal Litigation-Where Did It Go Off Track?, LITIG., Summer 2008, at 5, 62. Judith Resnik has explained how the additional procedural steps required in federal district courts, often promulgated as cost-saving reforms, have instead added to the costs of litigating in federal court. Resnick, supra note 53, at 194, 209.
109. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 558 (2007).
110. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 174-75 (1921).
111. On the inevitable bias of each of us, including judges, see Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 838 (2009)
112. and Judith Olans Brown, Stephen N. Subrin & Phyllis Tropper Baumann, Some Thoughts About Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 EMORY L. J. 1488, 1492-1508 (1997).
113. Maurice Rosenberg concluded in 1971: "Of the eighty-six rules that comprise the Federal Rules of Civil Procedure, the term 'discretion' appears in ten or so. Nevertheless, appellate courts have held that review-restraining discretion is implicitly present in thirty other provisions of the Rules." Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L. REV. 635, 655 (1971) ;
114. see also Resnik, supra note 53, at 195 (discussing how judicial discretion pervades the activity of the federal judiciary).
115. See id.
116. Burbank, supra note 49, at 1474.
117. Clara N. Carson, Lawyers in Profile: A Statistical Portrait of the U. S. Legal Profession, 10 RESEARCHING L. 1, 7 (1999).
118. See Stephen C. Yeazell, Re-financing Civil Litigation, 51 DEPAUL L. REV. 183, 183, 198-99, 216 (2001) ;
119. see also Herbert M. Kritzer, From Litigators of Ordinary Cases to Litigators of Extraordinary Cases: Stratification of the Plaintiffs' Bar in the Twenty-first Century, 51 DEPAUL L. REV. 219, 231-33 (2001).
120. For data on discovery, see, for example, Thornburg, supra note 48, at 246-49;
121. and Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking, 46 STAN. L. REV. 1393 passim (1994). (Pubitemid 24835250)
122. Subrin, Equity More Equitable, supra note 1, at 767-68.
123. Id. at 772-76;
124. Subrin, Substance-Specific, supra note 1, at 45 n. 124 (Judge Barefoot Sanders is quoted as saying that "relatively few cases require massive and constant intervention").
125. See Subrin, Substance-Specific, supra note 1, at 45;
126. see also Mullenix, supra note 64, at 1395-1400, 1407-09 (on the press) and 1404-07 (on lawyers and judges).
127. SUBRIN & WOO, supra note 44, at 147.
128. Marc Galanter, A World Without Trials?, 2006 J. DISP. RESOL. 7, 12 (2006) [hereinafter Galanter, World Without Trials];
129. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 464 (2004) [hereinafter Galanter, Vanishing Trials].
130. Galanter, World Without Trials, supra note 69, at 12;
131. Galanter, Vanishing Trials, supra note 69, at 459.
132. Galanter, Vanishing Trials, supra note 69, at 459.
133. For charts showing the rise in federal civil dispositions in ten year intervals from 1962 through 2002
134. see id. at 462-63. For the increase in criminal cases and the impact on the civil docket of the Speedy Trial Act, see William W. Schwarzer & Russell R. Wheeler, On the Federalization of the Administration of Civil and Criminal Justice, 23 STETSON L. REV. 651, 680 n. 89 (1994) ;
135. and Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L. J. 979, 987-88 (1995).
136. Maybe more positive aspects of the transsubstantive/equity procedure have led to more settlements and fewer trials. Perhaps the discovery methods have in fact provided both sides with a realistic view of their respective cases, and thus made a trial unnecessary not because of unpredictability, but because the lawyers know what to expect and can thus achieve informed settlement. And perhaps the discovery, sometimes showing an insufficiency of evidence for at least one element of the plaintiff's cause of action, and sometimes showing that an affirmative defense or a claim in its entirety must be believed, has added to more summary judgment motions justifiably allowed; thus, this too, diminishes the number of trials.
137. Seymour Moskowitz, Discovery in State Civil Procedure: The National Perspective, 35 W. ST. U. L. REV. 121, 128-32 (2007).
138. See, e.g., id. at 127-35. Five states vary the amount of permitted discovery for "lowstakes, economic litigation, cases." Glenn S. Koppel, Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process, 58 VAND. L. REV. 1167, 1222 (2005).
139. California, Colorado, Connecticut, Illinois, and Texas "define these cases by amount-in-controversy.... California's amount-in-controversy cut-off is the lowest by a margin of $25, 000 to $50, 000. Kentucky's Economic Litigation Docket includes specified classes of cases regardless of amount in controversy." Id. For state variations on volume limits on a case-differentiated bases
140. see id. at 1222-23. The state procedural rules of Colorado and Kentucky have been called "Federal Rules Replicas." John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. L. J. 354, 356 (2003)
141. (internal quotation marks omitted). Some states accomplish tracking through rules of civil procedure. E.g., CAL. CIV. PROC. CODE § 94 (a) (West 2009) ;
142. KY. R. CIV. P. 33.01 (3), 93.01, 93.02;
143. TEX. R. CIV. P. 190.1-.5.
144. Other states accomplish tracking through court rules. See, e.g., N. J. STAT. ANN. §§ 4:5A-1 to-2 (West 2009).
145. Some states use court orders. E.g., MA. R. SUPER. CT. order 1-88;
146. N. Y. NEW YORK COUNTRY COURTHOUSE PROCEDURES procedure V.
147. For the Bureau of Justice Assistance Fact Sheet describing methods of Differentiated Case Management, see CAROLINE COOPER ET AL., U. S. DEP'T OF JUSTICE, DIFFERENTIATED CASE MANAGEMENT: IMPLEMENTATION MANUAL 9, 11-14 (1993), http://www.ncjrs.gov/pdffiles/difm.pdf.
148. See, e.g., FLA. U. S. DIST. CT. S. DIST. GENERAL RULE 16.1 (a) ("Differentiated Case Management in Civil Actions") ;
149. MN. U. S. DIST. CT. RULES 1, 4, 6, 10-11 (allowing parties to agree to these rules, which, inter alia, restricts the amount and time for discovery, sets a certain trial date within six months of the date of the Pretrial Conference (which is to be within 30 days of the date in which the complaint was served), and grants each side only eight hours of trial time) ;
150. MO. U. S. DIST. CT. E. DIST. L. R. 16-5.01 ("Case Management Tracks") ;
151. In re Standing Order Governing Civil Case Management Before the Honorable Frank D. Whitney, No. 3:07-MC-47 (W. D. N. C. May 14, 2007) ;
152. OH. U. S. DIST. CT. N. DIST. CIVIL RULE 16.1 ("Differentiated Case Management").
153. Subrin, Clark, supra note 17, at 148-49.
154. E.g., 42 U. S. C. § 300aa-15 (2006) (awarding plaintiffs injured by vaccines damages and attorney fees) ;
155. see also Burbank, supra note 41, at 118.
156. Unfortunately, the majority in Iqbal seems to have forgotten the importance of Rule 9 (b) in cases involving the need to prove a defendant's state of mind, and have apparently, by judicial fiat rather than the Enabling Act process, amended the Rule out of anything close to its prior existence.
157. See Burbank, supra note 41, at 115. The disproportionate impact rigorous pleading requirements and current summary judgment practice has on plaintiffs in discrimination cases has been frequently and amply illustrated.
158. See, e.g., id. at 117-18;
159. 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) ;
160. Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 429 (2004) ;
161. Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 RUTGERS L. REV. 705, 709 (2007).
162. Paul D. Carrington, Renovating Discovery, 49 ALA. L. REV. 51, 54 (1997).
163. Given the place in our country of private litigation to effectuate public norms, and the place of discovery in making this effectuation possible, plus the impossibility in some cases for meritorious plaintiffs to know in advance enough facts to comply with a rigorous pleading requirement since they have not yet engaged in discovery, a few of the proposals in the Final Report of the American College and the Institute that I mentioned at the beginning of this paper do not seem wise. Among them are replacing notice pleading with "fact-based pleading" and not permitting discovery after initial disclosures and additional limited discovery, absent agreement or a court order.
164. ACTL/IAALS, FINAL REPORT, supra note 3, at 5, 9. How can a plaintiff in a civil rights suit rely on federal judges to permit the needed additional discovery, when many of these same judges took a dim view of these suits and required fact pleading before Twombly and Iqbal?
165. See, e.g., Fairman, supra note 53, at 988. Moreover, how will plaintiffs in civil rights suits have the opportunity to move the court for any discovery in those cases dismissed at the pleadings stage? Perhaps the Final Report, by suggesting that "[p]leadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party's claims," means to protect a party that is unable to know material facts because the evidence is in the hands of the defendant, and that a motion to dismiss for failure to state a claim should not be granted when this is the case.
166. ACTL/IAALS, FINAL REPORT, at 5.
167. And perhaps the need to move the court for additional discovery as the normal rule can be alleviated by the Final Report's acknowledgement of the need for special rules for some cases and the suggestion for discovery protocols for "certain types of specialized cases."
168. Id. at 11. I would, though, need to read these clarifications before concluding that the Final Report's pleading and discovery recommendations reflect an understanding of the unique place of United States civil litigation in protecting societal norms established by legislatures.
169. GEOFFREY C. HAZARD, Jr., SOUTHWESTERN LEGAL FOUND. & SOUTHERN METHODIST UNIV. SCHOOL OF LAW, REPORT OF THE CONFERENCE ON THE FEDERAL RULES OF CIVIL PROCEDURE 3 (1995).
170. Patrick Higginbotham, Foreword, 49 ALA. L. REV. 1, 4-5 (1997).
171. THOMAS E. WILLGING ET AL., FED. JUDICIAL CTR., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS, AND PROPOSALS FOR CHANGE: A CASE-BASED NATIONAL SURVEY OF COUNSEL IN CLOSED FEDERAL CIVIL CASES 2 (1997). "In response to a list of thirteen changes that might potentially reduce litigation costs, the most frequent choice by the attorneys was to increase the availability of judges to resolve discovery disputes (54%)."
172. Id. at 10. "About 40% of the attorneys reported unnecessary discovery expenses due to discovery problems."
173. Id. at 5.
174. The classical article raising concerns about judicial case management is Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 378-80 (1982).
175. WILLGING ET AL., supra note 83, at 2.
176. Many others have written about simple or fast tracks, see, for example, Michael A. Friedrichs, Fast Track: A Panacea for a Delayed and Cluttered Court System?, 1 S. D. JUST. J. 443, 443 (1993) ;
177. Richard McMillan, Jr. & David B. Siegel, Creating a Fast-Track Alternative Under the Federal Rules of Civil Procedure, 60 NOTRE DAME L. REV. 431, 431-32 (1985) ;
178. Steven Croley et al., South Carolina's Fast Track Jury Trial: An Inventive and Inexpensive Way to Resolve Cases, S. C. LAW., July 2009, at 14, 15;
179. see also Edward H. Cooper, Simplified Rules of Federal Procedure?, 100 MICH. L. REV. 1794, 1798 (2002).
180. A RAND study of twenty federal district courts in the 1990s found that "[s]horter time from setting a discovery schedule to discovery cutoff is associated with both significantly reduced time to disposition and significantly reduced lawyer work hours." JAMES S. KAKALIK ET AL., RAND, JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 16 (1996), http://www.rand.org/pubs/monograph-reports/2007/ MR800.pdf.
181. They also found that work hours correlate with "costs to litigants in dollar terms."
182. Id. at 16. "Litigant data also show little difference in satisfaction between shorter and longer time to discovery cutoff."
183. Id. Early setting of a trial date results in an additional reduction of time, but does not significantly change lawyer work hours.
184. Id. at 14. Further support for firm trial dates is found in Barbara J. Rouse & Stephen E. Neel, Voice of the Judiciary: Firm, Fair Trial Date Initiative-An Update, BOSTON B. J., Mar./Apr. 2007, at 7, 7-8.
185. A RAND study of twenty federal district courts in the 1990s found that limiting interrogatories had a significantly reduction of total lawyer work hours for hourly fee attorneys. JAMES S. KAKALIK ET AL., RAND, DISCOVERY MANAGEMENT: FURTHER ANALYSIS OF THE CIVIL JUSTICE REFORM ACT EVALUATION DATA 48-50 (1998), http://www.rand.org/pubs/monograph-reports/2009/MR941.pdf. "These findings support the policy of limiting interrogatories as a means of limiting lawyer work hours because there is no statistical evidence that interrogatory limitations hurt, and they may help for several subsets of cases."
186. James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B. C. L. REV. 613, 664 (1998)
187. [hereinafter Kakalik et al., Discovery Management]. The researchers did not have sufficient data to comment on whether reducing the number of depositions would reduce hours spent and consequently costs, but it is logical to believe that deposition reduction would result in reduction of lawyer hours spent and a consequent reduction in costs.
188. Kakalik et al., Discovery Management, supra note 88, at 659 ("We found no strong evidence that a policy of early mandatory disclosure reduced lawyer work time on any of the subsets of cases examined."). The Final Report of the Joint Project reported: "Only 34 percent of the respondents said that the current initial disclosure rules reduce discovery and only 28 percent said they save the clients money. The initial-disclosure rules need to be revised."
189. ACTL/IAALS, FINAL REPORT, supra note 3, at 7.
190. Judge Keeton recommended this two decades ago. Robert E. Keeton, Time Limits as Incentives in an Adversary System, 137 U. PA. L. REV. 2053, 2055-56 (1989).
191. Professor Stephen Burbank suggested this idea to me. He was influenced by Sean Farhang. See Farhang, supra note 41, at 822, 824.
192. An initial attempt at drafting a more simplified procedure was rejected politely by the Advisory Committee, which ended its discussion of simplified procedure, after hearing from three Federal Judges, as follows: "The Committee expressed thanks to the panel members for their very informative and helpful presentations." CIVIL RULES ADVISORY COMM., JUDICIAL CONFERENCE OF THE U. S., MINUTES: OCTOBER 16 AND 17, at 20-28 (2000), http://www.uscourts.gov/ rules/Minutes/CV10-2000-min.pdf [hereinafter ADVISORY COMM.].
193. Subrin, Simplified Procedure, supra note 1, at 186-187. The current Reporter to the Advisory Committee on the Federal Rules of Civil Procedure drafted rules for a simple draft, and reported some of the problems he encountered and foresaw with such an enterprise. Cooper, supra note 86, at 1800-04.
194. See ADVISORY COMM., supra note 92, at 25-26;
195. Subrin, Simplified Procedure, supra note 1, at 187.
196. ADVISORY COMM., supra note 92, at 24.
197. Id.
198. See, e.g., Subrin, Simplified Procedure, supra note 1, at 191 nn. 62-63. Professor Burbank put the importance of empiricism in order to better understand civil litigation this way: "If those with the power of discretion are unwilling to surrender any of it, let us at least hope that they will also seek the power of facts." Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. PA. L. REV. 1925, 1963 (1989).
199. KAKALIK ET AL., supra note 87, at 26-28.
200. See ADVISORY COMM., supra note 92, at 27.
201. Id. at 22.
202. CIVIL RULES ADVISORY COMM., JUDICIAL CONFERENCE OF THE U. S., MINUTES: APRIL 7-8, at 36 (2008), http://www.uscourts.gov/rules/Minutes/CV04-2008-min. pdf.
203. See John Burritt McArthur, Inter-branch Politics and the Judicial Resistance to Federal Civil Justice Reform, 33 U. S. F. L. REV. 551, 582-83 (1999).
204. Id. (quoting KAKALIK ET AL., supra note 87, at 12;
205. KAKALIK ET AL., RAND, IMPLEMENTATION OF THE CIVIL JUSTICE REFORM ACT IN PILOT AND COMPARISON DISTRICTS 29 (1996), http://www.rand.org/pubs/monograph- reports/2007/MR801.pdf). McArthur is less polite than RAND about the judicial reluctance to truly allow tracking to be tested: "Ever tactful, RAND recorded complaints from judges and lawyers about the difficulty of putting cases into tracks. But it identified the more fundamental problem when it mentioned 'judges' desire to tailor case management to the needs of the case and to their style of management.' Judges didn't want to change their habits."
206. Id. at 583 (quoting KAKALIK ET AL., supra note 87, at 12).
207. Croley et al., supra note 86, at 16.
208. Judge Niemeyer was sensitive to this potential critique when he introduced the simplified procedure question to the Advisory Committee. "The purpose is not to provide a second-class procedure to claims that are deemed unimportant. Instead, the purpose is to provide a procedure that will better enable these claims to be enforced." CIVIL RULES ADVISORY COMM., JUDICIAL CONFERENCE OF THE U. S., MINUTES: OCT. 14 AND 15, at 39 (1999), http://www.uscourts.gov/rules/Minutes/1099mnCV.pdf. Thom Main has pointed out to me that I have excluded cases in which Congress has mandated energetic enforcement and that this may well imply that simple track cases will not receive the advantage of energetic enforcement, thus implying second-rate justice. This is a fair point, but I think that "energetic enforcement" requires a balancing of costs and benefits. The diminution of costs in the simple track, and the reduction of delay, provide multiple benefits, as I argue; such benefits compensate for the decreased discovery and time limits. In those statutes in which Congress has shown intent for energetic enforcement, the cost-benefit analysis shifts, in my view, and it makes sense to have fewer restraints. In these cases, the private bar is substituting for executive or administrative enforcement and the broad range of resources that might have been made available for such government enforcement.
209. See, e.g., Thornburg, supra note 48, at 248.
210. Moskowitz, supra note 74, at 124-26.
211. Fairman, supra note 53, at 988-89 & nn. 6-7.
212. See e.g., JEB BARNES, OVERRULED?: LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS 10-11 (2004) ;
213. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L. J. 331, 332-36 (1991).
214. This is a proposal I made in 1994. Subrin, Substance Specific, supra note 1, at 48-56. In a letter dated September 22, 1997, Professors Subrin, Burbank, and Hazard made a similar proposal to the Advisory Committee on the Federal Rules of Civil Procedure in a letter sent to then Chairman, the Honorable David F. Levi. On February 19, 2008, I made a proposal to the American Law Institute for a similar project on "Substance-Specific Procedural Standards." Neither the Advisory Committee nor the A. L. I. has responded to these proposals. The idea of protocols for discovery in particular subject-matter areas was mentioned at an Advisory Committee meeting in 1997: "Several bar groups and commentators have expressed support for some effort along these lines."
215. CIVIL RULES ADVISORY COMM., JUDICIAL CONFERENCE OF THE U. S., MINUTES OCT. 6 AND 7 (1997), http://www.uscourts.gov/rules/Minutes/cv10-97.htm.
216. I urged such protocols (I called them "presumptive rules") in Subrin, Substance Specific, supra note 1, at 48, 52-56. For a positive response to my proposal, see Jeffrey W. Stempel, Halting Devolution or Bleak to the Future: Subrin's New-Old Procedure as a Possible Antidote to Dreyfuss's "Tolstoy Problem", 46 FLA. L. REV. 57, 58-60 (1994).