Heightened Procedure

71 Pages Posted: 9 Apr 2016 Last revised: 20 Jul 2016

See all articles by Jessica Erickson

Jessica Erickson

University of Richmond School of Law

Date Written: April 7, 2016

Abstract

When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for uniform procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened procedure” — additional procedures applicable only in designated areas of the law. Across a variety of substantive areas, lawmakers have adopted heightened pleading standards, stays of discovery, agency review, and a multitude of other tools from the heightened procedural toolbox. Despite the prevalence of heightened procedure, there has been no comprehensive examination of its role across the legal system, leaving lawmakers with little understanding of what specific heightened procedures do and what specific areas of the law need. This Article aims to provide that framework, explaining how lawmakers can match the causes of meritless litigation with the appropriate heightened procedural tools. In the end, meritless litigation is not one-size-fits-all, and its procedural solutions should not be either.

Keywords: procedure, heightened pleading, fee shifting, discovery, agency review

Suggested Citation

Erickson, Jessica, Heightened Procedure (April 7, 2016). Iowa Law Review, Vol. 102, 2016. Available at SSRN: https://ssrn.com/abstract=2760375

Jessica Erickson (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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