Civil Procedure as a Critical Discussion

70 Pages Posted: 10 Dec 2019 Last revised: 26 May 2020

Date Written: December 10, 2019

Abstract

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and a concluding phase. Those phases are the umbrella under which discrete argumentation phases occur at points we call stases. Whenever litigants seek a ruling or judgment, they reach a stasis—a stopping or standing point for arguing procedural points of disagreement. During these stases, the parties make arguments that fall into predictable “commonplace” argument types. Taken together, these stock argument types form a taxonomy of arguments for all civil cases. Our claim that the Federal Rules of Civil Procedure function as a system for argumentation is novel, as is our claim that civil cases breed a taxonomy of argument types. These claims also mark the beginning of a broader project. Starting here with the Federal Rules of Civil Procedure, we embark on a journey that we expect to follow for several years (and which we hope other scholars will join), exploring our model’s application across dispute resolution systems and using it to make normative claims about those systems. From a birds-eye view, this Article also represents a short modern trek in a much longer journey begun by advocates in city states in and near Greece nearly 2500 years ago.

Keywords: civil procedure, law and rhetoric, stasis theory, pragma-dialectics

JEL Classification: K10, K19, K40, K49

Suggested Citation

Provenzano, Susan E. and Larson, Brian, Civil Procedure as a Critical Discussion (December 10, 2019). 20 Nevada Law Journal 967-1035 (2020); Northwestern Public Law Research Paper No. 19-23; Texas A&M University School of Law Legal Studies Research Paper No. 19-70. Available at SSRN: https://ssrn.com/abstract=3501724

Susan E. Provenzano (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Brian Larson

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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