Proposed Changes to Federal Rules of Civil Procedure: Applying Lessons on Institutional Change to Predict Their Effectiveness

16 Pages Posted: 27 Jul 2014 Last revised: 6 Sep 2017

Date Written: July 25, 2014

Abstract

This paper reviews major principles of institutional change in leading books by psychologists who study the challenges of, and the optimal means of achieving, change in an institution. The paper then recognizes that one of the major goals of these proposed amendments is to reduce the time and cost of litigation in general and discovery in particular. Applying principles of institutional change, however, a close examination of the proposed amendments suggests that they will not effect the change they seek, at least not to an appreciable degree. The proposed amendments appear to underestimate the obstacles in place when seeking change in an institution. The paper offers examples of rule changes that have been simply ignored, including specifically rule changes designed to speed up litigation and reduce discovery costs. In addition, the proposed amendments do not appear to be part of a more comprehensive plan to achieve reduction in litigation time and discovery costs through additional amendments, such as limiting the time a case is pending (or limiting the discovery period). One principal of institutional change is that it is best brought about if there is a comprehensive plan with stages of changes, such that the process proceeds over time with certain progress achieved before more challenging changes are made. Finally, the experts in institutional change suggest that clarity in the goals and criteria by which progress is measured promotes change. Here, one of the key amendments -- proportionality of discovery as part of the new definition of the scope of discovery -- lacks the kind of clarity likely to bring change. At best courts will have to work with the factors provided and may be able to develop some general principles. However, there is a great risk of case-by-case analysis and satellite litigation over the question of what the new amendment means.

Keywords: Civil Procedure, Amendments, judicial, discovery, litigation, costs, institutional change, proportionality, federal courts

JEL Classification: K10, K19, K30, K39, K40, K41, K49

Suggested Citation

Madison III, Benjamin V., Proposed Changes to Federal Rules of Civil Procedure: Applying Lessons on Institutional Change to Predict Their Effectiveness (July 25, 2014). Available at SSRN: https://ssrn.com/abstract=2472268 or http://dx.doi.org/10.2139/ssrn.2472268

Benjamin V. Madison III (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States
757.226.4586 (Phone)
757.226.4329 (Fax)

HOME PAGE: http://www.regent.edu

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