Resolving Cases 'On the Merits'

31 Pages Posted: 16 May 2010 Last revised: 21 Feb 2011

Date Written: 2010


Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

Keywords: courts, procedure, civil procedure

Suggested Citation

Tidmarsh, Jay, Resolving Cases 'On the Merits' (2010). Denver University Law Review, Vol. 87, No. 2, 2010, Notre Dame Legal Studies Paper No. 10-16, Available at SSRN:

Jay Tidmarsh (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-6985 (Phone)
574-631-4197 (Fax)

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