Conservative & Libertarian Legal Scholarship: Civil Procedure

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VIII. Civil Procedure

The Role of the Federal Judge

Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49 (1923). This article contains the most exhaustive analysis of the Judiciary Act of 1789 undertaken up to its writing. The author exposes the existence of primary documents which, had they been known to Justice Story, might well have caused him to reverse his decision in Swift v. Tyson. Warren’s exhaustive research eventually helped to provide the intellectual underpinnings for the Supreme Court’s Erie decision in 1938.

Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J. 27 (2003).  An argument in favor of judges adhering to the traditional passive role of adjudicating based on institutional competence, constitutional structure, and respect for historical precedent. 

The Adversarial Process

WALTER OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991). A journalistic account of how “we changed the rules in our courtrooms to encourage citizens to sue each other.” For a thoughtful review, see Douglas H. Ginsburg, Law’s Paradise Lost?, 90 MICH. L. REV. 1609 (1992).

William W. Schwarzer, The Federal Rules, The Adversary Process, and Discovery Reform, U. PITT. L. REV. 703 (1989). Judge Schwarzer suggests a reconsideration of the use of the adversarial process in civil discovery. He maintains that while the adversarial process was designed to allow litigants to have exclusive control over the preparation and presentation of a case, the rationale for allowing litigants to have such control over the proceedings is undermined in a system where the majority of cases never reach trial. To remedy this problem Schwarzer recommends the adoption of mandatory disclosure provisions. The Supreme Court has since adopted mandatory disclosure (1993), but the discovery vs. disclosure debate is far from over. For a dissenting view, see the opinion authored by Justice Scalia and joined by Justices Thomas and Souter in 146 F.R.D. 507 (1993).

PETER HUBER, GALILEO’S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). In this well-documented book, Huber examines the decline of the Frye test-which allowed “expert” testimony only from those who employed the theories, methods, and procedures “generally accepted” by the relevant scientific community, and considers the impact this decline has had upon the fate of science in the courtroom. After cataloguing the abuses resulting from the acceptance of nonscience by our legal system, Huber ultimately suggests a return to a fortified Frye test.

Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 MICH. L. REV. 107 (1994). Develops a theory of settlement based on three psychological precepts, including the “framing” phenomenon: “People avoid risk when they choose between options they understand as gains, but they prefer risk when they select between choices viewed as losses.” Reports that a series of psychological experiments-involving nearly 450 subjects “substantiate the basic hypothesis that non-value-maximizing considerations can affect [settlement] decisions . . .”

Class Action Law

For an overview of the landscape of securities class action law, in the wake of both the Private Securities Litigation Reform Act (PSLRA) and Sarbanes-Oxley, see Lisa L. Casey, Reforming Securities Class Actions from the Bench: Judging Fiduciaries and Fiduciary Judging, 2003 B.Y.U. L. REV. 1239 (2003).  In setting up her argument against the position that judges in such cases owe fiduciary duties to absent class members, Casey provides a comprehensive overview of the criticisms and merits of class actions under the current regime generally.  For other proposals to reform securities litigation, see John C. Coffee, Jr., Reforming the Securities Class Action: An Essay on Deterrence and Implementation, 106 COLUM. L. REV. 1534 (2006); A.C. Pritchard, Stoneridge Investment Partners, LLC v. Scientific Atlanta, Inc.: The Political Economy of Securities Class Action Reform, CATO SUP. CT. REV. (forthcoming, 2008).

Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991). This widely read article disputes the notion that all settlements are voluntary and instead provides evidence which indicates that the “structural characteristics common to securities class actions . . . combine to produce outcomes that are not a function of the substantive merits of the case.” To combat this problem, Cooper suggests several reforms including changes in the method for calculating attorney fees, limits on director liability, and an alteration of the structure of insurance coverage.

Jonathan Macey & Geoffrey Miller, The Plaintiff’s Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1 (1991). Explores the implications of poor “client monitoring” of plaintiffs’ class action attorneys, and the imperfections of the current set of rules in place to regulate abusive behavior by class action attorneys. Proposes a number of reforms “to control agency costs with sensible rules that take into account the fact that the plaintiffs’ attorney-not the client-controls the litigation.”

For a useful collection of notable securities class action settlements and related documents, see the Stanford Law School Securities Class Action Clearinghouse, at


Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002).  An argument that the current understanding of sovereign immunity is ambiguous because it confuses subject-matter jurisdiction with personal jurisdiction, whereas the Framers intended sovereign immunity to apply only to personal jurisdiction.

Douglas D. MacFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the Limits of Due Process, 84 B. U. L. REV. 491 (2004). Provides a history of how courts decided to stretch their enumerated-acts long-arm statutes (which allow state courts to assert jurisdiction over nonresidents) to the limits of what the constitution permits.

Law & Economics Approaches to Civil Procedure

Symposium: Economic Analysis of Civil Procedure, 23 J. LEGAL STUD. 303 (1994). Contains a number of papers on a broad range of topics, including discovery, settlement under joint and several liability, and the judiciary’s role in promulgating rules of procedure, among others. The papers are summarized in Geoffrey P. Miller, Introduction: Economic Analysis of Civil Procedure, id. at 303.

For an overview of the law and economics literature on civil procedure, consult Chapter 21 of RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (7th ed., 2007).

Early landmark studies that applied economic concepts to litigation and the court system include William M. Landes, An Economic Analysis of the Courts, 14 J. L. & ECON. 61 (1971), Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. LEGAL STUD. 399 (1973), and John P. Gould, The Economics of Legal Conflicts, 2 J. LEGAL STUD. 279 (1973).

Internet resources: A gigantic database on some 3.7 million federal district court civil cases is maintained by the Administrative Office of U.S. Courts, the Federal Judicial Center, and the Inter-university Consortium for Political and Social Research, at,, and

Some of the most important empirical research on America’s civil justice system has been conducted by the RAND Corporation’s Institute for Civil Justice. Some of its publications, and an explanation of its current research agenda, can be found on its web page, For insight into the collective mind of the plaintiffs’ bar, check the home page of the American Associate for Justice, formerly the Association of Trial Lawyers of America,

Last updated October 2008

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