Discovery and the Social Benefits of Private Litigation
52 Pages Posted: 10 Apr 2019
Date Written: August 1, 2018
In Part I of the Article, I explore the extent to which it is possible to identify the social goals of private litigation and to measure the impact of various approaches to civil litigation against those goals. In Part II of the Article, I briefly consider historical claims that the ethos of 1920s and 1930s federal law reform supports a liberal, Progressivism-influenced understanding of congressional intent in its passage of the Rules Enabling Act and its approval of the initial version of the Federal Rules of Civil Procedure. Part III analyzes the prescriptive implications of recent empirical research suggesting that Congress enacts more statutes incorporating express private rights of action ("EPRAs") during times of divided government. In Part IV, I complete my analysis by exploring a dynamic curiously absent from progressive commentators’ “social benefits of discovery” calculus: the social costs of discovery. Part V concludes by offering some preliminary thoughts on the future of discovery as a tool for social change.
Keywords: civil litigation; discovery; federal law; Federal Rules of Civil Procedure; private litigation; social change
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