Narrative-Erasing Procedure

57 Pages Posted: 8 Sep 2017 Last revised: 20 Jul 2018

See all articles by Anne E. Ralph

Anne E. Ralph

The Ohio State University Moritz College of Law

Date Written: July 20, 2018

Abstract

In recent years, we have seen the concerning rise of what is best described as “narrative-erasing procedure” in civil pretrial litigation. The Supreme Court has imposed the heightened “plausibility” pleading standard. The Rules Advisory Committee has altered the discovery rules to further emphasize “proportionality” in discovery requests. And settlement pressures at every stage of pretrial litigation are high.

These trends have been the subject of robust academic debate. But missing from this debate is any consideration of the values that narrative supports in civil litigation. Stories are what the law produces, and stories are what grow the law. The democratic functioning of the litigation system relies on the generation, development, and contest of narratives. Because narrative is a vital part of litigation, narrative-erasing procedural developments threaten harmful ossification of the law. Narrative-erasing procedure also has a harsh impact on individuals who are already marginalized in society. Without narrative, the law cannot address longstanding problems and accommodate citizens in changing times.

The article offers a comprehensive account of the way that narrative functions in pretrial litigation—an area that has been understudied to date. The article also advances solutions for the problems caused by narrative-erasing procedure, including policy recommendations and tools for introducing narrative by other means, drawing on Marshall Ganz’s work on “public narrative” in the social movements literature. Without greater attention to the phenomenon of narrative-erasing procedure, we risk sacrificing a core feature of the civil justice system: the contest of narratives that produces fair outcomes.

Keywords: Litigation, Pretrial, Plausibility, Twombly, Iqbal, Proportional, Narrative, Literature, Storytelling, Pleading, Discovery, Civil Procedure, Settlement

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

Suggested Citation

Ralph, Anne E., Narrative-Erasing Procedure (July 20, 2018). Nevada Law Journal, Forthcoming, Ohio State Public Law Working Paper No. 410, Available at SSRN: https://ssrn.com/abstract=3033005 or http://dx.doi.org/10.2139/ssrn.3033005

Anne E. Ralph (Contact Author)

The Ohio State University Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
218
Abstract Views
1,681
rank
166,572
PlumX Metrics