Narrative-Erasing Procedure

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