The Complexity of Modern American Civil Litigation: Curse or Cure?
Burbank, Stephen B., Judicature
Modern American procedural policy has been inconsistent in its approach to complexity, in some instances creating complexity where it is not necessary for effective access to court.
There is no accepted definition of complex litigation in the United States. There may not even be a consensus on what that category should contain. It means different things to different American lawyers, judges, and scholars. The view I take of it is informed by decades of teaching, writing, consulting as a lawyer, and serving as a mediator and arbitrator, but it is a personal view.
Good scholarship in comparative procedure requires one to master far more than laws of procedure, leading one very quickly to the comparative study of social and political institutions. Although this challenge is familiar to those who subject substantive law to comparative inquiry, it comes as a shock to those who have been indoctrinated in traditional rhetoric about procedure, which would have us believe that it is "adjective law," which is to say technical, unimportant, and best left to experts. On the contrary, by now any informed observer should know that, at least in the United States, even if procedure is technical, it is also a source of enormous power, left to experts only at a polity's peril.1
Anyone seeking to describe American law to those from other countries confronts the additional challenge of determining how to deal with a robust federal system consisting of 51 jurisdictions with lawmaking power and their own courts. The customary response to that dilemma, even if only as a concession to the shortness of life, is to focus only on federal law and federal institutions. For this project, that response could be misleading, not just because the great bulk of the law invoked in American litigation is state law and more than 95 percent of civil litigation occurs in state courts, but also because the complexity of modern American litigation is (on the view I take of that phenomenon) due in part to the existence and dynamics of the U.S. federal system. In addition, and a related point, the traditional response would be inadequate to the extent that the existence of, or prospects for, complex litigation elsewhere in the world are due to regional legal arrangements, such as those made for the European Union.
Chastened but undaunted by these challenges, I will seek to excavate the roots of complexity in modern American litigation. That inquiry will lead me to discuss five related phenomena that I regard as consequential for this purpose: (1) the architecture of modern American lawsuits and the procedural philosophy that architecture reflects, (2) the volume of litigation and the public and private policies, attitudes, and arrangements that affect it, (3) the dynamic nature of, and dispersed institutional responsibility for, American law, (4) the enormous amounts of money at stake in some litigation, and (5) the search for, and the forms of, relevant evidence in modern American litigation, and the impact of science and technology on both. I will conclude with reflections prompted by the insight that modern American procedural policy has been inconsistent in its approach to complexity, the insight that prompted the title of this article.
The architecture of modern American lawsuits
Modern American procedure traces to 1938, when the Federal Rules of Civil Procedure became effective. Those rules have proved highly influential in the 50 states, with many states explicitly borrowing the Federal Rules and others informing the interpretation of formally different rules with federal precedent. Thus, although there is evidence that states are less enthusiastic about following the federal lead than they have been in the past, the Federal Rules are usually a fair source for comparison, to the extent that procedural rules affect a measure of interest in a comparative project.
The Federal Rules marked a stark break with the dominant procedural system that came before them, common law procedure inherited from England and adapted to U. …