The Problem with Procedure: Some Inconvenient Truths About Aspirational Goals

Author(s)

George Rutherglen

Details

Faculty editor: Larry Alexander
Publication: Law Review
Volume: 56
Issue: 1
Start Page: 1
Month: March
Year: 2019
Type: Article
Instititional Repository (IR) location of full article: https://digital.sandiego.edu/sdlr/vol56/iss1/

Abstract

Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each other. No one believes that fairness and efficiency always point in the same direction, let alone towards speedy adjudication. The unsettling reality, which these declared aspirations pass over in silence, is that procedure serves as the gatekeeper to enforcement of substantive rights. Often, it works as an obstacle to enforcement, so much so that attempts at enforcement are quickly abandoned or never even attempted. Yet this in role in weeding out claims must be taken seriously in any current regime, like ours, of broadly declared but unevenly enforced rights. Not all of these rights could possibly be enforced all of the time, and certainly not by a “just, speedy, and inexpensive determination of every action and proceeding.” This article tries to explain why we have, and how we can diminish, the yawning gap between what procedure purports to do and what it actually does. In a phrase, it is “case selection” for continued litigation and settlement. Rule 1 is the principal exhibit of how the ambitions of civil procedure have strayed from and thereby obscured the actual operation of procedural rules.