The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time.
Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.” Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1, “the just, speedy, and inexpensive determination of every action and proceeding,” and the “justice-seeking ethos” on which the Federal Rules are based: the belief in ”citizen access to the courts and in the resolution of disputes on their merits.”
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