Tuesday, October 11, 2016

The End of an Era? Federal Civil Procedure After the 2015 Amendments

My article on the 2015 amendments to the FRCPs is now in print. It’s The End of an Era? Federal Civil Procedure After the 2015 Amendments, 66 Emory L.J. 1 (2016). Here’s the abstract:

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting documents, the final amendments — in light of their text, structure, and accompanying advisory committee notes — should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.

Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief’s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.

 

 

 

 

https://lawprofessors.typepad.com/civpro/2016/10/the-end-of-an-era-federal-civil-procedure-after-the-2015-amendments.html

Adam Steinman, Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink

Comments

Adam, I agree that change is not likely. I do not agree that change is not needed to IMPROVE access to justice. You write: “The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.”

October 20, 2016 the latest edition of the Rule of Law Index is to be released. http://worldjusticeproject.org/blog/october-20-launch-announced-wjp-rule-law-index-2016 I doubt that there will be much change in the US’s usual miserable showing in access to justice. ABA President Hubbard told the ALI at its 2015 Annual Meeting: “Lack of access to justice in our country is simply a national disgrace. … The United States of America ranks 65th of 99 countries around the world in accessibility and affordability of civil justice.”

We have a lot of catching up to do to make it into the top 50, let alone the top 10. Has anyone noticed how many law review articles there have been on Iqbal and how few on the ABA’s Model Access Act? The only people who can access the courts are those with lots of money or institutional support. It is their access that is being defended enthusiastically. A whole lot needs to be changed in Federal Procedure, not least of all in pleading and discovery, if we are to provide justice for all.

Jim

Posted by: James Maxeiner | Oct 12, 2016 9:47:24 AM

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