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Unpublished Paper
Rulemaking, Litigation xculture and Reform in Federal Courts
ExpressO (2011)
  • Edward D. Cavanagh

Abstract This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is unlikely to transform an established litigation culture. That is not to suggest that change cannot be effectuated but only that cultural changes are incremental and proceed at a glacial pace. These principles are amply illustrated through two culture shocks to the federal civil justice system brought about by the promulgation of the Federal Rules of Civil Procedure: notice pleading and pretrial discovery. Neither notice pleading nor the liberal discovery envisioned by the drafters of the Federal Rules has been wholeheartedly embraced by the bench and bar. Both have been subject to periodic guerilla warfare by opponents. It now appears that these attacks have made some headway and have led the courts and Advisory Committee to retrench and to perhaps turn back the clock.

Publication Date
March 5, 2011
Citation Information
Edward D. Cavanagh. "Rulemaking, Litigation xculture and Reform in Federal Courts" ExpressO (2011)
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