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Oregon Law Review

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The Federal Rules of Civil Procedure were promulgated in 1938 to provide the “just, speedy, and inexpensive determination” of all civil actions. The underlying theme of the Federal Rules is that meritorious litigants should have their day in court. To that end, the Federal Rules eliminated procedural pitfalls, including highly technical forms of action inherited from common law, that rewarded mastery of pleading techniques over the substantive merits of claims. The Federal Rules also introduced a simplified pleading system, commonly denominated as “notice pleading,” thereby easing the heavy burden imposed on the parties. The factual details of the case could then be developed through pretrial discovery. The aim was to facilitate, not to discourage, trial on the merits.

Unfortunately, the stated goal of the Federal Rules to provide the “just, speedy, and inexpensive” determination of all civil disputes has grown elusive. The world has changed significantly in the seventy-five years since the Federal Rules were initially promulgated. Litigation in federal courts has become very expensive and unduly lengthy. The cost, length, and complexity of federal cases has made it riskier to proceed in federal court. More importantly, many, including Justices on the Supreme Court, question the ability of federal judges to reach good outcomes.

The federal civil justice system is now at the crossroads. Many putative litigants have chosen to opt out of the courts in favor of some form of alternative dispute resolution (ADR), which they perceive as cheaper, faster, more private, and less risky than the court system. Others opt for foreign forums to avoid the perceived harshness of some American laws. Even those matters that are filed in the courts rarely go to trial — they are either settled or dismissed on motion. While settlement of disputes is normally viewed as desirable, settlements that are prompted solely by economic concerns totally divorced from the merits of any claims are troublesome. The judicial response to the problems of cost and complexity, typified by Bell Atlantic Corp. v. Twombly and its progeny, is to dismiss poorly pleaded cases at the outset of the litigation, irrespective of substantive merit.

The unintended consequence of these phenomena — the exodus from the court system in favor of ADR, settlements, and Twombly — is that civil trials are fast becoming obsolete. That is most undesirable. The availability of a judicial forum to decide claims on the merits remains important because it assists in the development of a rational legal system that is predictable and accessible to the public and that produces outcomes that are fair to the litigants. Yet, if the federal courts stand pat and do not take steps to control the costs of litigation, the continued slide to irrelevance is inevitable.

Fortunately, the court system can reverse this decline. The Federal Rules of Civil Procedure provide all the necessary tools to control costs, minimize delays, and limit the length and complexity of trials. Courts simply need to implement these rules in the day-to-day management of litigation. In addition, by incorporating technological advances, courts can reduce costs, simplify trials, and achieve better outcomes. The judicial system is clearly up to these tasks. Now is the time to act.



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