Multistage Adjudication

101 Pages Posted: 1 Oct 2012 Last revised: 26 Oct 2012

See all articles by Louis Kaplow

Louis Kaplow

Harvard Law School; National Bureau of Economic Research (NBER)

Date Written: September 30, 2012

Abstract

Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Lqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.

Keywords: litigation, law enforcement, adjudication, courts, motion to dismiss, summary judgment, screening, burden of proof

JEL Classification: D81, K14, K41, K42

Suggested Citation

Kaplow, Louis, Multistage Adjudication (September 30, 2012). Harvard Law Review, Forthcoming; Harvard Public Law Working Paper No. 12-41. Available at SSRN: https://ssrn.com/abstract=2154683 or http://dx.doi.org/10.2139/ssrn.2154683

Louis Kaplow (Contact Author)

Harvard Law School ( email )

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HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=32&show=bibliography

National Bureau of Economic Research (NBER)

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