The federal rules of civil procedure were intended by their drafters to be a model for states to adopt, thereby promoting national procedural uniformity. This Article proposes that the next great wave of procedural reform in American civil justice emanate from the states themselves in the form of a national code of state civil procedure. The willingness of states to chart their own paths toward civil justice reform presents both a problem and an opportunity. A central thesis of the Article is that national procedural uniformity among state courts remains a desirable, viable, and achievable goal despite the failure of the top-down federal-rules-model approach to achieve that goal. The momentum for developing uniform state procedural rules must, however, originate with the states themselv...
In 1934, Congress enacted the Rules Enabling Act, authorizing the Supreme Court to promulgate uniform rules governing practice and procedure in the federal courts. The Federal Rules of Civil Procedure were thereafter enacted and took effect in 1938. A hallmark of the Federal Rules was a liberalization of pleading standards. Bell Atlantic Corp v Twombly, the High Court, reversing the Second Circuit, held that a complaint that alleges mere parallel behavior among rival telecommunications companies, coupled with stray statements of agreement that amounted to legal conclusions failed, as a matter of law, to state a claim for an antitrust conspiracy in violation of section 1 of the Sherman Act. Now that Twombly has overruled Conley v Gibson, it is imperative that the Advisory Committee revis...
It is hard to believe that there have been nearly 50 updates since the introduction of the on Apr 26, 1999. The 49th update has brought with it a variety of changes and challenges for the practitioner, not least a new Practice Direction that concentrates upon the conduct of the parties prior to commencing proceedings. Of course, the emphasis on pre-action conduct or behavior is nothing new. The Practice Direction, 'PD', does, however, contain a number of points which have caused concern and confusion and this article addresses those concerns with the aim to provide clarification where needed. It is still early days to say whether or not the PD is a success and whereas many claimants view it as yet another obstacle to getting on with the claim, pre-action behavior a...
Civil Procedure Discovery
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