Abstract

http://ssrn.com/abstract=544943
 
 

Footnotes (135)



 


 



An Invitation to the Rulemakers - Strike Rule 9(b)


Christopher M. Fairman


Ohio State University (OSU) - Michael E. Moritz College of Law


UC Davis Law Review, Vol. 38, 2004

Abstract:     
Pleading is the gateway into the federal courts. Consistent with the goal of merits determination, the Federal Rules of Civil Procedure typically impose only a minimal pleading requirement called "notice pleading." An elevated pleading burden requiring greater factual particularity - heightened pleading - is required only for cases involving fraud or mistake. Despite the limited situations requiring heightened pleading under the Federal Rules, federal courts routinely apply heightened pleading burdens to a myriad of cases. This Essay takes aim at the Federal Rule that spawns the widespread use of heightened pleading - Rule 9(b). Finding scant justification for Rule 9(b) even in the fraud context, this Essay makes the case for eliminating heightened pleading for fraud cases by amending the Federal Rules of Civil Procedure. The reasons are simple. Federal Rule of Civil Procedure 9(b) is more the product of historical accident than anything else. The current rationales for its retention are mere rationalizations that create divergent and unworkable standards in the fraud arena. Unfortunately, Rule 9(b) is not content to stay put. Federal courts routinely apply and extend Rule 9(b) heightened pleading into other substantive areas they deem "fraud-like." This ad hoc judicial rulemaking is in the face of repeated Supreme Court direction to stop. By striking Rule 9(b), heightened pleading can be contained: a rule-based solution to a rule-created problem.

Number of Pages in PDF File: 18

Keywords: civil procedure, pleading, fraud, civil practice, complaint, defenses

JEL Classification: K41

Accepted Paper Series


Download This Paper

Date posted: May 20, 2004  

Suggested Citation

Fairman, Christopher M., An Invitation to the Rulemakers - Strike Rule 9(b). UC Davis Law Review, Vol. 38, 2004. Available at SSRN: http://ssrn.com/abstract=544943

Contact Information

Christopher M. Fairman (Contact Author)
Ohio State University (OSU) - Michael E. Moritz College of Law ( email )
55 West 12th Avenue
Columbus, OH 43210
United States
614-292-2422 (Phone)
614-292-2035 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,688
Downloads: 217
Download Rank: 81,197
Footnotes:  135

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.453 seconds