Failing Faith - Adjudicatory Procedure in Decline

• NCJ Number: 106096
• Author(s): J Resnik
• Date Published: 1987
• Length: 67 pages
• Sale Source: A Philip Randolph Institute
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Reprinted from The University of Chicago Law Review, V53, N 2 (1986)

Annotation

This article elucidates the rationale of the framers of the 1938 Federal Rules of Civil Procedure, considers how the rules have shaped the environment occasioning current critiques of the rules, and outlines tasks and choices for updating the rules.

Abstract

Framers of the 1938 Federal Rules of Civil Procedure had 'faith' in adversarial exchanges as an adequate basis for adjudication, in adjudication as the essence of fair decisionmaking, and in fair decisionmaking as essential for legitimate government action. In the past 50 years, however, Federal court dockets have significantly changed. There are more cases to decide; some disputes are between the powerful and the poor; new Federal legislation has yielded complex cases; group litigation is often used; complex cases increase the opportunity for pretrial and trial adversarialism; many judges believe there is a growing number of aggressive or inept attorneys; and alternative dispute mechanisms have been increasingly used. Current critics of the rules believe the rules do not adequately address the aforementioned factors. Given the problems of contemporary litigation, the rules need reworking. Subsets of cases should be provided with relevant rules; the rules must address the court regulation of attorneys; and rules should be devised for settlement, particularly regarding the judge's role in shaping settlements. 273 footnotes, 1 figure, and 2 tables.