The Forms Had a Function

28 Pages Posted: 27 Jul 2014 Last revised: 9 Nov 2016

See all articles by A. Benjamin Spencer

A. Benjamin Spencer

Harvard Law School; University of Virginia School of Law

Date Written: January 25, 2016

Abstract

The Official Forms appended to the Federal Rules of Civil Procedure are a seeming anachronism, more appropriate for a much simpler time that hardly characterizes modern day federal civil litigation. Perhaps the form for a negligence complaint is the most striking in this regard, offering only that at a certain time and place “the defendant negligently drove a motor vehicle against the plaintiff,” causing harm. Not only does such a complaint fail to typify the negligence claims one might find on any federal docket, but it neither seems to reflect the much greater complexity that characterizes modern litigation and life in general.

What then could be the continuing point of having the forms at all? Indeed, that is the question the Advisory Committee on Civil Rules (“Advisory Committee”) has asked and answered quite recently: It has concluded that the Official Forms no longer serve any useful purpose and may therefore be discarded into the waste bin of history. Seemingly without much further thought, the Standing Committee promptly concurred, putting the forms on an all-but-certain course toward oblivion.

Might it be true that the forms have outlived their usefulness? And if no longer of any use, were the forms ever of any real utility? On the occasion of the pending abrogation of the Official Forms, this article takes the opportunity to review the history and use of the forms, finding that they had more value than the current rulemakers cared to acknowledge: The principal function of the forms was to reify the liberal vision of the Federal Rules and to guard against deviations therefrom. Unfortunately, as that liberal vision has given way to a more restrictive view in what Stephen Subrin refers to as the “fourth era” of civil procedure, the unyielding simplicity and permissiveness of the forms have become too much for the otherwise changing system to bear. Below, then, is a eulogy of the forms.

Keywords: Appendix of Forms, Federal Rules of Civil Procedure, Official Forms, pleading standards, Twombly, Iqbal, Advisory Committee, Standing Committee

JEL Classification: K00, K1, K10, K19, K4, K40, K41, K49

Suggested Citation

Spencer, A. Benjamin, The Forms Had a Function (January 25, 2016). 15 Nevada Law Journal 1113 (2015); Virginia Public Law and Legal Theory Research Paper No. 2014-44. Available at SSRN: https://ssrn.com/abstract=2472083 or http://dx.doi.org/10.2139/ssrn.2472083

A. Benjamin Spencer (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Cambridge, MA 02138
United States

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11916/Spencer

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434.924.3572 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2299812

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