The Haves of Procedure

63 Pages Posted: 22 May 2019 Last revised: 2 Jun 2019

See all articles by Ion Meyn

Ion Meyn

University of Wisconsin Law School

Date Written: May 20, 2019

Abstract

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the forum and thus prefers a permissive pleading standard. In contrast, a “civil have” seeks to impede a plaintiff from bringing suit and thus prefers a demanding pleading standard. As to discovery, “criminal haves,” possessing actionable facts and seeking to control the pretrial distribution of information, resist discovery and judicial involvement. In contrast, “civil haves” often need information to pursue legal objectives, and thus prefer a formal discovery phase, along with the option of judicial intervention to temper instances of discovery abuse. The procedural divide allows the “haves” to achieve these otherwise incompatible objectives.

In the absence of a procedural divide, “criminal haves” and “civil haves” would engage in contestation over what rules govern litigation. This Article suggests that, should civil and criminal litigants be subject to the same rules, as initially proposed during federal reform in the 1940s, the introduction of litigants into a unified forum would result in a fairer approach to procedure, mitigate existing inequalities, and accomplish some litigation objectives of the “havenots.”

Keywords: civil procedure, criminal procedure, haves, have nots, litigation

JEL Classification: K10, K40, K41

Suggested Citation

Meyn, Ion, The Haves of Procedure (May 20, 2019). William & Mary Law Review, Vol. 60, 2019; Univ. of Wisconsin Legal Studies Research Paper No. 1476. Available at SSRN: https://ssrn.com/abstract=3391407

Ion Meyn (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-890-3540 (Phone)
608-263-3380 (Fax)

HOME PAGE: http://www.law.wisc.edu/

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