The Five Themes of the Course
Power – how is it distributed? Rules allocate power between different parties. The way we draft and interpret the rules will change the way different people in a lawsuit will have power in that dispute.
Interrelatedness – The Rules are a system. Changing one part of the system could have a dramatic effect on other parts. We tend to be, as rule-makers, stingy about changes due to the potentially “ripple effects”.
Balancing of interests – The Rules try to balance interests that often compete.
Costs associated with choices
Efficiency vs. equity
Hopefully, everything we do with touch these themes.
The Five Pedagogical Objectives
Identify and apply “Black Letter” procedural rules – we’ll learn what notice pleading is, what discovery tools we have, what the requirements for summary judgment are and how they are different than those for a motion to dismiss
Determine the doctrinal and policy implications
Understand theoretical implications
Develop a critical perspective – there are different ways to do procedure.
Critically read cases for procedural issues
Why are the Federal Rules of Civil Procedure important? Most of the states’ rules have modeled their rules after the Federal Rules. Remember Erie and the Rules Enabling Act. The Supreme Court has delegated its responsibility to write the Federal Rules. There is the Judicial Conference, which has two parts: the Standing Committee and the Advisory Committee. Congress has the opportunity to accept or reject Rule changes. For example, should you be able to file things by fax? Lawyers say yes! It’s now in Rule 5(b)(2)(D). You can deliver copies of things by fax as long as you meet the standards of the local jurisdiction.
Congress can intervene unilaterally by creating their own rules, separate from the Federal Rules of Civil Procedure. Fairman thinks this is bad. Other people think it’s good.
The state of modern litigation
One of the common criticisms is that we live in an overly litigious society. Yeazell challenges the idea that there is an explosion of litigation. Public perceptions cause Congress to make changes in federal practice. Tort reform and class action reform stem from that. 98% of litigation is at the state level. Very little is federal. But the state rules are still modeled on the Federal Rules. We don’t even have an Ohio Rules course! So only 3% of litigation goes to trial. Most litigation settles. Everything we talk about up to pleading, joinder, and disposition prior to trial is pretty much where litigation is. Very, very little gets to the trial stage. There are more jury trials than bench trials. Contracts plaintiffs and torts defendants tend to win. So Fairman and others think that tort reform is bad.
What does medieval English royal power have to do with procedure?
The story of pleading
Fairman’s scholarship is chiefly in the area of pleading and pleading practice. What’s the relationship between common law pleading practice and the modern Federal Rules? What does the King of England have anything to do with it? Let’s go back to Medieval Times! There were two types of courts: the royal courts or king’s courts and the courts of equity. With the royal courts of justice, you had to get the king’s attention somehow. What develops initially as an oral tradition evolves into the system of writs: paper documents that spelled out different causes of action, such as the trespass writ. This was what Wright called “the ela
d over what a fact is. Neither evidence nor conclusions were considered facts, and you could get booted out for pleading either. You also had to plead all the elements of a cause of action, which led to other levels of complexity. The reform effort goes off the rails! Why did it happen? Both Field and common law pleadings tried to make pleadings do lots of stuff in the legal process. Pleadings are good for giving you notice of an upcoming lawsuit. They can also state the facts, narrow issues, and resolve meritless claims.
This sets the stage for the next level of reform. Charles Clark was a federal appellate judge and professor at Yale. This was the “New Deal” for the federal courts! Clark and his draft committee had a vision of what he wanted the rules to do. He believed that both code pleading and common law pleading inappropriately kept people from getting their day in court. A system of rules was developed around that premise. It all starts with Rule 1: there will be no more split between law and equity courts. Federal courts will be able to give relief at law and in equity. Rule 2: there will only be one form of action. Then we go to the famous Rule 8, upon which Fairman’s career is based! This is our “short and plain statement” rule! It sets the bar relatively low. The facts are gone, the writs are gone, the cause of action is gone. You just need the short and plain statement. It’s notice pleading!
