Discovery and the Social Benefits of Private Litigation

52 Pages Posted: 10 Apr 2019

See all articles by Paul J. Stancil

Paul J. Stancil

Brigham Young University, J. Reuben Clark Law School

Date Written: August 1, 2018

Abstract

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

Suggested Citation

Stancil, Paul J., Discovery and the Social Benefits of Private Litigation (August 1, 2018). 71 Vanderbilt Law Review 2171 2018; BYU Law Research Paper No. 19-10. Available at SSRN: https://ssrn.com/abstract=3369065

Paul J. Stancil (Contact Author)

Brigham Young University, J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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