Procedural Design

The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the vision of the drafters of the Federal Rules of Civil Procedure in 1938, it no longer describes the reality of federal litigation. Jurisdiction can be determined at the end of the lawsuit rather than the beginning. Judges demand determination of factual disputes before discovery commences through a variety of motions and orders. Hearings that are trials in all but name are held at the commencement of litigation, even as trials are expected to end a suit. Appeals can be brought at any time, even multiple times in one case. This Article is the first to synthesize and explain these developments. For a variety of reasons explained in this Article, the federal courts take inconsistent and often poorly justified approaches to procedural design. But a procedural system ought to have an articulable design, one that fits with the goals of that system and can be contested based on its ability to achieve those goals. To begin the discussion of the future of procedure, this Article suggests three possibilities: the traditional sequential order described above, a bespoke order in which judges pick the most important issue in the case and adjudicate that issue using the order of motions they think appropriate, or a subject matter order in which procedures are standardized but tailored by case type. Each of these procedural designs has costs and benefits when measured against the competing values of accuracy, relative speed of resolution, and cost. Preferences among them are likely to depend on the reader’s assumptions about the capabilities of judges and party behavior