Thursday, January 26, 2006

Review of Litigation Publishes Article Entitled "The Other Federal Rules of Civil Procedure"

The Review of Litigation has just published an article by Professor Laurens Walker entitled The Other Federal Rules of Civil Procedure, 25 Rev. Litig. 79 (2006). Here is an excerpt from the Introduction:

The Federal Rules of Civil Procedure have attracted much general analysis and comment since their adoption in 1938. However, the rich context of common law procedural rules that function in conjunction with the 1938 Rules to determine the actual function of the federal district courts has not yet received any systematic analysis and comment. Among these background rules are, for example, heightened pleading requirements, the burdens of production and persuasion, and the doctrine of res judicata. These Other Federal Rules of Civil Procedure Rules are the subject of this article. My thesis is straightforward: The Other Rules interact with the 1938 Rules in such a way as to counter the apparent progressive character of the 1938 Rules and produce a functioning system which is not progressive in reality but conservative.


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