Treading Water? Current Procedural Issues in America

Abstract

Last year in this publication, I wrote about the multiple sources of procedural change in the US. This year, I write to report on a variety of procedural issues that should be of interest to proceduralists outside America, though only one of them has produced a formal change, and that change actually originated about four years ago. Hence the title of this year's paper - one might say that those seeking procedural reform in the US are "treading water" - staying afloat but not moving very far. Specifically, I will discuss the following: (I) Class action amendments begin to take effect; (II) Personal jurisdiction issues in class actions and multidistrict (MDL) litigation continue to percolate; (III) Many issues regarding American discovery have emerged, though no formal rule changes have occurred since 2015; (IV) Enforcement of contractual arbitration requirements increasingly forces US plaintiffs out of US courts; and (V) Third Party Litigation Funding (TPLF) has grown dramatically, and prompted efforts to require disclosure and to regulate lending. In sum, the current American stasis in reform means that there may in the future be many balls in the air, but that change for the present seems more likely to result from the "common law" efforts of courts adapting existing procedures to their cases than to aggressive (or even modest) statutory or rule changes.