Gateways and Pathways in Civil Procedure

Abstract

Over the past thirty years, the United States Supreme Court and the Judicial Conference have modified the Rules of Civil Procedure to address concerns that litigation costs too much, takes too long, and leads to unjust results. The Supreme Court’s opinions have focused primarily on fortifying what I refer to as the “gateways” of civil procedure – including motions to dismiss, for class certification, and for summary judgment – where judges can dismiss cases that do not meet the applicable standards, thereby eliminating additional cost and delay. The Judicial Conference, in contrast, has focused primarily on regulating what I call the “pathways” – non-dispositive, context-specific decisions during discovery and before trial – to target problems of cost and delay while allowing the case to proceed. Scholars have exhaustively dissected and debated these gateway and path-way changes but have paid less attention to what these conversations – and the underlying rules – share in common. This Article offers a unified framework with which to understand the Rules’ two contrasting strategies to achieve just and efficient outcomes and examines available evidence measuring their relative effectiveness at achieving their shared goals. Stepping back, the Article asks how best to understand the roles of gate-ways and pathways in civil process and the sensibility of proposals for re-form.

Keywords: civil procedure, pleading, summary judgment, class action certification, civil procedure rulemaking