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The Claim

74 Pages Posted: 16 Feb 2017 Last revised: 24 Feb 2017

Simona Grossi

Loyola Law School Los Angeles

Date Written: February 15, 2017

Abstract

I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.

I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.

My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.

Suggested Citation

Grossi, Simona, The Claim (February 15, 2017). Houston Law Review, Forthcoming; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-07. Available at SSRN: https://ssrn.com/abstract=2917579 or http://dx.doi.org/10.2139/ssrn.2917579

Simona Grossi (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8140 (Phone)
213-380-3769 (Fax)

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