41 Pages Posted: 8 Dec 2009 Last revised: 7 Nov 2012
Date Written: December 4, 2009
The success of the American civil justice system depends on balancing two types of litigant access: the ability to get into court in the first instance, and the ability to participate meaningfully in the process until a final resolution is reached, including (where appropriate) trial by jury. The current system of notice pleading in federal civil cases, however, favors only the first form of access by delaying the narrowing of disputed issues until the discovery and summary judgment phases. The result is too many cases in which settlement is forced by inordinate cost and delay rather than an examination of the merits. We propose a fact-based pleading regime for the federal courts which is designed to narrow the parties’ issues at a much earlier stage in the case, thereby requiring less costly and less time-consuming discovery. Our proposal draws from the positive experiences of fact-based pleading systems at the state and international levels, as well as an examination of the failure of discovery and summary judgment to adequately narrow issues in an efficient and cost-effective manner.
Keywords: Fact pleading, fact-based pleading, Twombly, Iqbal, discovery, summary judgment, motion to dismiss, civil procedure, Federal Rules of Civil Procedure, cost of litigation, issue-narrowing, Alberta, Woolf reforms, pre-suit discovery, Oregon, Pennsylvania, access to justice, pleading requirements
JEL Classification: K40, K41
Suggested Citation: Suggested Citation