The Puzzling Persistence of Pleading Practice
University of California Hastings College of the Law
Texas Law Review, Vol. 76, 1998
The Federal Rules of Civil Procedure, adopted in 1938, seemed designed to put an end to pleadings motions, and a 1957 decision of the Supreme Court appeared to complete that process. But as the author noted in a 1986 article, pleadings motions continued. This article traces the further evolution of pleadings practice, with particular attention to the Supreme Court's 1993 decision and the adoption by Congress of strict pleading rules in the 1995 Private Securities Litigation Reform Act. It finds that pleadings motions continue to serve valuable purposes, and that courts use a sort of common law process in developing standards for deciding them in order to further merits decisions. Accordingly, pleading practice will persist, and further amendments to the Federal Rules to modify the courts' handling of these problems seem unwarranted.
Accepted Paper Series
Date posted: February 1, 1999
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