Wednesday, November 5, 2008

Bassett and Perschbacher on the "Revolutionary" Federal Rules of Civil Procedure

Debra Lyn Bassett, University of Alabama School of Law, and Rex Perschbacher, University of California, Davis School of Law, have posted The Revolution of 1938 and its Discontents, which is forthcoming in volume 61 (2008) of the Oklahoma Law Review. The abstract follows:
This paper explores the divergence between the purposes and goals of the 1938 Federal Rules of Civil Procedure and the purposes and goals of litigation today. In doing so, we chronicle some of the intrusions and erosions into federal procedure that have gradually but permanently altered the 1938 Rules - Congressional tinkering (including the enactment of federal statutes that modify the application of the Federal Rules, such as by imposing higher pleading standards for certain claims); litigant pressures (including the increased use of alternative dispute resolution methods generally, and arbitration and private judging in particular, that result in end runs around the law); and the courts themselves (including local rules that modify broader interpretations of the Federal Rules). With greater barriers to litigation on the merits, and with the increasing privatization of law, the 1938 Federal Rules risk becoming not only less central to litigation, but actually becoming irrelevant-becoming truly mere federal procedural rules to be bent and adapted to the greater goals of managing and concluding litigation. This Article is the result of a Call for Papers by the AALS Section on Civil Procedure and was one of three papers selected for presentation at the 2008 AALS Annual Meeting. The other two selected papers, authored by Professor Richard Marcus and Professor Robert Bone, also appear in this issue of the Oklahoma Law Review.