Securing the Normative Foundations of Litigation Reform

Abstract

Federal court adjudication has changed in major ways over the past thirty years. Judges are more actively involved in promoting settlements than ever before; alternative dispute resolution has moved center stage; and large-scale aggregation of related lawsuits has become much more common. These changes raise deep and difficult questions that implicate core elements of civil adjudication. This symposium Essay explores some of the challenges these developments pose for procedural law in the twenty-first century. At its most general level, the Essay calls for more rigorous normative work in civil procedure and for a better understanding of the relationship between procedure and substantive law. The springboard for the Essay's argument is Professor Robert Cover's famous 1975 article, For James Wm. Moore: Some Reflections on a Reading of the Rules. A careful reading of Cover's article provides a framework for making three main points: first, that a coherent normative account of the procedure-substance relationship is essential to crafting sound procedure; second, that Cover grasped the nature of that relationship more clearly than many proceduralists do today; and third, that we would do well to follow Cover's lead in working out answers to the difficult procedural questions that twenty-first century judges will confront. The Essay concludes by discussing some implications for three critical areas of current and future reform interest: settlement, aggregation, and the proper scope of judicial discretion.

Keywords: procedural rulemaking, procedure and substance, error cost, case aggregation, settlement, procedural discretion, Robert Cover

JEL Classification: K41