Monday, April 25, 2011

AALS Civil Procedure Section Call for Papers

AALS Section on Civil Procedure
Call for Papers

The Executive Committee of the AALS Section on Civil Procedure invites the submission of papers for presentation at the Annual Meeting of the AALS January 4-8, 2012, in Washington, D.C.

The topic of our panel will be "Procedural Reform: Rulemaking v. Legislation." Procedural reform has enjoyed (or suffered from, depending on one's point of view) considerable attention in recent years. Procedural topics are in the mainstream media. Supreme Court cases have reformed bedrock principles. Rulemakers regularly debate amendments to an ever-expanding corpus of rules. And the legislative branch seeks to undo some reforms while initiating still others.

Papers presented by the panel will put this constellation of procedural reforms into a broader perspective. The debate about whether procedural reform is more properly the province of rulemakers or lawmakers is neither new nor, perhaps, even resolvable. Yet it remains
relevant-urgent, even, given the stakes. We invite the submission of papers that address this topic in whole or in part. Papers that address the topic in whole might, for example, consider the use of empirical evidence as an engine for procedural reform. Or institutional choice theory might be applied to the procedural landscape. Even if your work addresses the topic only in part, we encourage you to submit it; we will be selecting papers so that the panel, considered as a whole, will generate a dialogue to explore the broader issues.

Drafts of the papers submitted for consideration must be received by September 1, 2011. Submissions should be sent to Papers already accepted for publication will be considered.

Thursday, April 21, 2011

Prof. Singer on Proportionality in Discovery

Prof. Jordan Singer (New England School of Law) has recently posted an article entitled Proportionality's Cultural Foundation on SSRN. Here is the abstract:

Since the 1980s, a variety of provisions designed to prevent excessive pretrial discovery have been incorporated into the Federal Rules of Civil Procedure. By almost all accounts, however, these “proportionality” rules have not met their stated goals. The percentage of cases with high levels of discovery has not changed in decades, and concerns about disproportionate discovery are as pronounced as ever. I argue that the failure of the proportionality rules stems from a disconnect between the rules and the prevailing litigation culture. The rules incorrectly assume that excessive discovery is caused by attorneys abusing their discretion during the discovery process, and accordingly seek to limit that discretion. But attorney discretion is not the problem, and in fact attorneys and judges rely on the broad exercise of attorney discretion to create efficient, predictable, and fair resolutions to civil cases. Because the rules directly conflict with cultural norms, they are largely ignored in practice. I therefore propose a radically different approach to combating excessive discovery, by removing the existing restrictions on attorney discretion and implementing new procedures designed to emphasize the cultural values of civil litigation that naturally promote controlled discovery.

The article is available for download here.

Civil Rules Advisory Committee Decides to Hold Mini-Conference on Spoliation and Preservation

Per Thomas Allman (formerly of the Sedona Conference): At the April 4-5, 2011 meeting of the Civil Rules Advisory Committee held at the University of Texas Law School in Austin, the Committee decided to schedule a mini-conference on preservation and spoliation in September, 2011. The purpose of the Conference will be to resolve uncertainty about preservation problems and explore the issue of whether rules would really provide significant relief.