Exodus from and Transformation of American Civil Litigation

35 Pages Posted: 4 May 2016  

Richard D. Freer

Emory University School of Law

Date Written: May 3, 2016

Abstract

The story of American federal civil litigation over the past half century is one of exodus and of transformation — exodus from and transformation of the traditional model of “court litigation.” The exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended the Federal Arbitration Act contracts of adhesion and to the adjudication of federal statutory rights. Thus arbitration has become mandatory for claims by consumers and employees. In approving this expansion, the Court increasingly makes clear that it sees nothing special about court litigation — that it and arbitration are mechanisms of equal dignity.

But, at least as envisioned historically, court litigation plays a far broader role than arbitration. It is a transparent public process, governed by the rule of law. It generates the common law that governs most aspects of our daily lives. It is pivotal in social ordering. Arbitration, in contrast, goes on behind closed doors, is not cabined by the rule of law, and does not result in reasoned opinions. Arbitration resolves the dispute at hand and does little else. Accordingly, some have argued that the view that arbitration and court litigation are equivalents cheapens the values embodied in court litigation.

That argument is strong, but would be stronger if today’s version of court litigation resembled the historical model. It does not. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. Indeed, some judges conclude that going to trial reflects a systemic “failure.”

The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.

Keywords: Litigation, Arbitration, Caseload Crisis, Civil Procedure, Access to Justice

JEL Classification: K00, K10, K40, K41

Suggested Citation

Freer, Richard D., Exodus from and Transformation of American Civil Litigation (May 3, 2016). Emory Law Journal, Forthcoming; Emory Legal Studies Research Paper No. 16-416. Available at SSRN: https://ssrn.com/abstract=2774280

Richard D. Freer (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
(404) 727-6838 (Phone)
(404) 727-6820 (Fax)

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