Litigation and Democracy: Restoring a Realistic Prospect of Trial

17 Pages Posted: 10 Dec 2010 Last revised: 11 Dec 2011

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Carey Law School

Stephen Subrin

Northeastern University - School of Law

Date Written: September 26, 2011


In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for injury and/or to enable implementation of important social norms through private enforcement; (3) they side-step not only congressional review but the entire rulemaking process that Congress prescribed, including multiple steps designed to facilitate broad public participation, and (4) they reward the lawlessness of lower courts that had ignored prior Court precedent proscribing fact-pleading requirements imposed by judicial decision with comparable lawlessness (and reportedly have spurred another cycle of lawlessness in district courts that have ignored them). We then suggest some remedial measures that might restore a realistic prospect of trial, a number of which would depart from the norm of trans-substantive procedure. We propose that the rulemakers develop a separate track for simple cases – a category that would not include cases for which there is objective evidence of congressional reliance on private enforcement -- that would employ bright-line rules permitting very limited discovery and virtually no case management. Recognizing that document discovery presents the most difficult reform challenge, we suggest a rule requiring that document requests in simple cases be specific. For discovery in complex cases, we stress the need for empirical study, particularly in light of the recent Federal Rule amendments concerning electronic discovery. We also suggest the development of discovery protocols by the stakeholders in substantive law litigation areas believed (or, in the event of additional empirical work, found) to involve disproportionate discovery. Finally, doubting that rule amendments could fix what is wrong with summary judgment today, we argue that courts should be given the resources necessary to allow judges to do what judges used to do. Believing that the current state of destructive friction between civil litigation and democracy is a product not just of inadequate resources, but also of the triumph of institutional and professional self-interest and both legislative and judicial politics, we contend that our citizens deserve better. The aspirations of our founders for trials in open court and jury trials are not obsolete, and neither is the duty of the judiciary, within constitutional limits, to respect clearly articulated statutory norms and clearly articulated legislative policy.

Keywords: Pleading and procedure, jury trials, Federal Rules of Civil Procedure, Rule 12(b)(6) motion to dismiss, decline in the number of trials, settlement, judicial case management, conclusory allegations, notice pleading and the right to discovery, Congressional intent, Rules Enabling Act, rulemaking

Suggested Citation

Burbank, Stephen B. and Subrin, Stephen, Litigation and Democracy: Restoring a Realistic Prospect of Trial (September 26, 2011). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, No. 2, pp. 399-414, Summer 2011, U of Penn Law School, Public Law Research Paper No. 10-37, Northeastern University School of Law Research Paper No. 59-2011, Available at SSRN:

Stephen B. Burbank (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Stephen Subrin

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics