21 Pages Posted: 14 Feb 2009 Last revised: 12 Jan 2010
Date Written: January 11, 2010
Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a "restrictive ethos" characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates the ability of claimants to prosecute their claims and receive a decision on the merits in federal court. In this brief Essay, after discussing some of the familiar components of the liberal ethos of civil procedure, I hope to set forth some of the aspects of federal civil procedure that reflect the restrictive ethos, following up with some thoughts on whether a dialectical analysis can help us understand the nature of the relationship between procedure's liberal and restrictive components.
Keywords: civil procedure, pleading, summary judgment, discovery, class action fairness act
JEL Classification: K00, K10, K40, K41, K49
Suggested Citation: Suggested Citation
Spencer, A. Benjamin, The Restrictive Ethos in Civil Procedure (January 11, 2010). George Washington Law Review, Vol. 78, 2010; Washington & Lee Legal Studies Paper No. 2009-02. Available at SSRN: https://ssrn.com/abstract=1343129 or http://dx.doi.org/10.2139/ssrn.1343129