Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure

Abstract

The Federal Rules of Civil Procedure, whatever criticisms we might have of their details, have been a major triumph of law reform. They have served for fifty years substantially intact, a statement that can be made of few other pieces of major legislation in our era. They have been adopted in a majority of the states and have been a principal source of borrowing in states with strong traditions of autonomy in matters of procedural law, notably California, Illinois, and New York. Moreover, within almost every state, a procedure based on the Federal Rules governs most types of civil litigation. Taking account of their use in state courts, Federal Rules provisions thus apply to virtually every type of contested civil case involving interests of substantial financial or social significance. Indeed, the comprehensive scope of the Federal Rules is now the basis of complaints against them.