63 Pages Posted: 16 Feb 2017 Last revised: 17 Sep 2018
Date Written: February 15, 2017
At the core of every liberal democracy is a commitment to the rule of law. Given our adversarial system, that commitment requires a vibrant and effective dispute resolution system. The ultimate end of procedure is justice, or to borrow an idea from Edmund Kahn, the ultimate goal of procedure is the demise of injustice. At its best, the American system of justice operates on principles founded in pragmatism and is more than capable of unwinding the most complex of legal disputes. My goal is to keep it that way. “The Claim” is part of a larger project designed to advance ongoing procedural reform as a product of American pragmatism. The article begins with a survey of 19th and 20th century procedural reform movements, and places particular emphasis on the work of Charles E. Clark, one of the primary forces behind the creation of the Federal Rules of Civil Procedure. Those reform movements reflected a tension between formalism--the need for rules—and pragmatism—the need for functional flexibility. The pragmatists largely won that battle, though over the past few decades we see a rising tide of formalism in a variety of procedural contexts.
Like Clark, I see the courts “neither [as] a sacred institution nor [as] a foe to progress but merely [as] one of the instrumentalities through which a democracy attempts to function.” Like Clark, I too believe that procedure exists to assist the courts and the people in the resolution of legal disputes. Hence, procedural rules and doctrines should be pragmatic, informed by fundamental principles, and flexible, i.e., adaptable, so as to properly address the specifics of each case and allow their “just, speedy, and inexpensive determination.” To me, this is a model and a perspective that can be valued and effective throughout the world—an egalitarian system that is designed to work.
But why “the claim” and, for that matter, what is the claim? Let’s begin with the “what.” A claim is a set of related facts giving rise to one or more rights of action. This definition is traceable to Clark and through him back to David Dudley Field, the forward-thinking destroyer of the common law pleading system. Notice that the claim has no formal edge aside from the facts upon which it is built. It is, at its core, a story that outlines the dispute between the parties. The “why” flows directly from the “what.” Given its informative and rights-generating functions, the claim is the heart of the litigation, the essential litigation unit. So instead of beginning a foray into procedural law with a microscopic study of arcane complexities of this or that procedural doctrine, I train on the essential litigation unit and argue that all procedural law should work in service to a merits-based resolution of the claim.
Centering one’s perspective on the claim does not in any fashion erase other considerations that ought to inform the interpretation and application of the law of federal courts (or of state courts). A claim-centered approach does, however, offer a perspective that reminds us of the fundamental judicial mission of dispute resolution. It also emphasizes that the focus of litigation reform should be on the fair and efficient delivery of justice. As such, the American system, informed by a pragmatic approach to the claim, can serve as an effective model of best practices throughout the world.
My goal is to provide a positive and realistic framework through which to critique the status quo of procedural law and upon which to re-energize the procedural reform movement led by Field and Clark, one that promotes best practices, natural lawyering and judging (as espoused by both Field and Clark), and avoids the flotsam of politically driven reform movements (as the ones that lead to the creation of the utterly complicated and convoluted Class Action Reform Act). I want to use the claim as passage to a procedural politics that sees the judicial branch as primarily there to resolve disputes under the law. And, yes, this would be a model system.
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