This Article provides a foundational structural analysis underlying the federal procedural system and explores the implications of that normative framework for the proper shaping of the federal system’s pleading and discovery rules. By analyzing and synthesizing the different elements of this underlying “litigation matrix,” the Article concludes that the Supreme Court’s “plausibility” test for pleading under Rule 8(a) of the Federal Rules of Civil Procedure represents an appropriate balance of the competing deep structural elements by imposing on a defendant the risks of unnecessarily burdensome pretrial discovery processes only when the complaint includes enough facts to suggest the viability of plaintiff’s allegations of legal wrongdoing. The Article argues, however, that current methods for controlling discovery abuse are inadequate, and therefore significant alterations in the methods for controlling discovery are necessary in order to successfully implement the litigation matrix. Specifically, the costs of discovery need to be recognized, in the first instance, as appropriately attributable to the party requesting information, rather than the party responding to information requests.
September 2016, Vol. 68, No. 5
Leslie C. Levin, Lawyers Going Bare and Clients Going Blind
Aya Gruber, Amy J. Cohen, & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts
Caprice Roberts, Supreme Disgorgement
Anthony Jose Sirven, Undue Process: A Father's Proprietary Interest in an Embryo and Its Clash with Casey
Maris Snell, Section 875C: Not for All Intents and Purposes