Document Type

Working Paper

Publication Date

10-8-2016

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Corporate Governance Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Political Science Network

Abstract

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades The biggest criticisms concerned pleading standards and access to discovery Many feared that the amendments would undermine the simplified meritsdriven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligationsThis Article argues that the amendments that came into effect on December 1 2015 do not mandate a more restrictive approach to pleading or discovery Although there was legitimate cause for alarm given the advisory committee's earlier proposals and supporting documents the final amendments "” in light of their text structure and accompanying advisory committee notes "” should be interpreted to preserve notice pleading and a robust discovery process The more significant lesson of the 2015 amendments therefore may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules for better or for worse The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real detrimental changes to federal pleading and discovery standards Yet the final amendments ultimately did not do soAccordingly the key battleground following the 2015 amendments will be in the federal courts themselves as judges are called upon to interpret and apply the rules in particular cases No doubt aware of this fact Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do These postamendment moves are not legally authoritative and do not modify the law of civil procedure But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach Properly interpreted the 2015 amendments do not support the Chief's narrative Recognizing this will be crucial for ensuring access and enforcement going forward

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