Prof. Spencer Posts Essay on the Restrictive Ethos in Civil Procedure
Professor A. Benjamin Spencer (Washington & Lee) has recently posted an Essay entitled The Restrictive Ethos in Civil Procedure on SSRN. This Essay was written for the 15th Annual Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law and will appear in their law review. Here is the Abstract:
Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a "restrictive ethos" characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates the ability of claimants to prosecute their claims and receive a decision on the merits in federal court. In this brief Essay, after discussing some of the familiar components of the liberal ethos of civil procedure, I hope to set forth some of the aspects of federal civil procedure that reflect the restrictive ethos, following up with some thoughts on whether a dialectical analysis can help us understand the nature of the relationship between procedure's liberal and restrictive components.
The complete Essay may be downloaded by visiting http://ssrn.com/abstract=1343129.