Heightened Procedure

Author:Jessica Erickson
Position:Professor, University of Richmond School of Law. J.D., Harvard Law School; B.A., Amherst College
Pages:61-120
SUMMARY

When it comes to combating meritless litigation, how much should procedure matter? Conventional wisdom holds that procedure should be uniform, with the same rules applying in all civil cases. Yet the causes of meritless litigation are not uniform, making it difficult for identical procedures to address the problem. As a result, lawmakers frequently turn to what this Article calls “heightened... (see full summary)

 
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Heightened Procedure
Jessica Erickson*
ABSTRACT: When it comes to combating meritless litigation, how much
should procedure matter? Conventional wisdom holds that procedure should
be uniform, with the same rules applying in all civil cases. Yet the causes of
meritless litigation are not uniform, making it difficult for identical
procedures to address the problem. As a result, lawmakers frequently turn to
what this Article calls “heightened procedure”—additional procedures
applicable only in designated areas of the law. Across a variety of substantive
areas, lawmakers have adopted heightened pleading standards, stays of
discovery, agency review, and a multitude of other tools from the heightened
procedural toolbox. Despite the prevalence of heightened procedure, there has
been no comprehensive examination of its role across the legal system, leaving
lawmakers with little understanding of what specific heightened procedures
do and what specific areas of the law need. This Article aims to provide that
framework, explaining how lawmakers can match the causes of meritless
litigation with the appropriate heightened procedural tools. In the end,
meritless litigation is not one-size-fits-all, and its procedural solutions should
not be either.
I. INTRODUCTION ............................................................................... 62
II. THE CAUSES OF MERITLESS LITIGATION ......................................... 66
A. INFORMATION ASYMMETRIES ..................................................... 67
B. COST ASYMMETRIES .................................................................. 70
C. HYBRID ASYMMETRIES .............................................................. 74
III. HEIGHTENED PROCEDURE AS A RESPONSE TO MERITLESS
LITIGATION ..................................................................................... 77
A. REDUCING INFORMATION ASYMMETRIES ..................................... 18
*
Professor, University of Richmond School of Law. J.D., Harvard Law School; B.A.,
Amherst College. This Article benefitted from suggestions made at the Junior Federal Courts
Conference, the Corporate & Securities Litigation Conferen ce, Law & Society, the Civil
Procedure Workshop, and the University of Richmond Faculty Colloquy. I want to thank Robert
Bone, Scott Dodson, Brian Fitzpatrick, Jim Gibson, Meredith Harbach, Corinna Lain, Evan Lee,
Kristen Osenga, Jack Preis, Alexander Reinert, Adam Steinman, Joan Steinman, and Verity
Winship for their helpful comments and thoughts in developing this Article.
62 IOWA LAW REVIEW [Vol. 102:61
1. Effective Procedural Tools ............................................. 78
i. Pre-Suit Discovery ........................................................ 78
ii. Pre-Filing Agency Review ............................................. 81
a. Ability to Investigate Claims ............................. 81
b. Proper Procedural Safeguards ......................... 83
c. Adequate Funding ............................................. 84
2. Ineffective Procedural Tools .......................................... 85
i. Heightened Pleading .................................................... 85
ii. Fee Shifting .................................................................. 87
B. REDUCING COST ASYMMETRIES .................................................. 87
1. Effective Procedural Tools ............................................. 87
i. Heightened Pleading .................................................... 27
ii. Fee Shifting .................................................................. 91
a. General Benefits of Fee Shifting ...................... 91
b. Addressing Concerns about Fee Shifting ........ 92
iii. Cost Shifting ................................................................ 38
iv. Stays on Discovery ........................................................ 99
v. Agency Review ........................................................... 100
vi. Prohibitions on Settlements ......................................... 102
2. Ineffective Procedural Tools ........................................ 103
i. Pre-Suit Discovery ...................................................... 103
ii. Mandatory Rule 11 Review ....................................... 104
C. REDUCING HYBRID ASYMMETRIES ............................................ 106
1. Ineffective Procedural Tools ........................................ 106
2. Effective Procedural Tools ........................................... 107
IV. HEIGHTENED PROCEDURE IN ACTION: THREE CASE STUDIES ...... 109
A. THE USE OF PROCEDURE IN MEDICAL MALPRACTICE
LITIGATION .............................................................................. 49
B. THE MISUSE OF PROCEDURE IN SECURITIES CLASS ACTIONS....... 113
C. THE PROCEDURAL DEBATE IN PATENT LITIGATION ................... 116
V. CONCLUSION ................................................................................ 120
I. INTRODUCTION
In certain corners of the legal system, meritorious cases are like needles
in a haystack—the problem is finding them. Meritless cases impose real costs
on the legal system; they burden courts, inflict unnecessary expense on
defendants, and give litigation a bad name. Yet, at the same time, meritorious
cases confer real benefits; they hold wrongdoers accountable, deter future
misconduct, and drive legal reform. If meritorious cases are worth finding,
how should we go about finding them?
In theory, procedure should help. Procedural rules help sort the good
2016] HEIGHTENED PROCEDURE 63
cases from the bad, allowing meritorious claims to go forward while weeding
out the meritless ones.1 Pleadings, discovery, motions for summary judgment,
Rule 11 filings—these tools all help identify claims that are unlikely to succeed
at trial.
The problem is that procedural rules are transsubstantive—they apply in
all civil cases.2 Yet the causes of meritless litigation are not one-size-fits-all. The
challenges of prisoner litigation are different from the challenges of securities
class actions, which are different still from the challenges of medical
malpractice and patent cases.3 Different types of cases pose different types of
challenges, which transsubstantive rules by their very nature cannot fix.4
But what transsubstantive rules cannot fix, legislatures can (or so they
think).5 In a variety of substantive areas, federal and state legislatures have
used what this Article calls “heightened procedure”—additional procedures
applicable in designated areas of the law to reduce meritless litigation. In
securities class actions, for example, Congress has raised pleading standards
1. See Robert G. Bone, Modeling Frivolous Suits, 145 U. P. L. Rᴇᴠ. 519, 577 (1997) (“The
goal of any regulatory scheme, whether it involves strict pleading, penalties or judicial screening,
is, loosely stated, to minimize the problems of frivolous litigation without creating too many new
problems along the way.”); Samuel Issacharoff & George Loewenstein, Second Thoughts About
Summary Judgment, 100 YALE L.J. 73, 74 (1990) (discussing the “screening function” of summary
judgment rules).
2. See FED. R. CIV. P. 1 (“These rules govern the procedure in all civil actions and proceedings
in the United States district courts, except as stated in Rule 81.”); see also Paul D. Carrington, Making
Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of
Civil Procedure, 137 U. P. L. Rᴇᴠ. 2067, 2080–81 (1989) (“Generalism in civil procedure is, in the
Anglo-American tradition, about a century older than the Federal Rules . . . .” (footnote omitted)); see
also generally David Marcus, Trans-Substantivity and the Processes of American Law, 2013 BYU L. REV. 1191
(examining the rise of transsubstantive procedural rules).
3. A number of eminent scholars have recognized the limits of transsubstantive rules. See,
e.g., Stephen B. Burbank, Pleading and the Dilemmas of “General Rules”, 2009 WIS. L. REV. 535, 536;
Arthur R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on
the Deformation of Federal Procedure, 88 N.Y.U. L. REV. 286, 370 (2013); see also generally Stephen N.
Subrin, Federal Rules, Local Rules, and State Rules : Uniformity, Divergence, and Emerging Procedural
Patterns, 137 U. PA. L. Rᴇᴠ. 1999 (1989).
4. By describing procedural rules as transsubstantive, I do not mean to imply that
procedural rules never vary across subject areas. There are a handful of Federal Rules of Civil
Procedure that apply only in certain types of cases, such as the exemptions to the initial disclosure
requirements in Rule 26(a) or the procedures in Rule 23.1 that are applicable only in
shareholder derivative suits. See F
ED. R. CIV. P. 26(a), 23.1. Moreover, judges have limited
discretion to alter the application of these rules in specific situations. See Steven S. Gensler, Judicial
Case Management: Caught in the Crossfire, 60 DUKE L.J. 669, 700 (2010) (“The Civi l Rules leave it
to the individual judge to custom-fit the procedure to the case.” ). These limited exceptions,
however, do not change the broader commitment to transsubstantive procedures, making it
difficult to address the problems in specific areas of the law.
5. See David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil
Procedure, 59 DEPAUL L. REV. 371, 416 (2010) (“Congress and state legislatures have embraced
substance-specific procedural rules as tools functionally indistinct from substantive legal changes
in order to achieve particular goals of public policy.”).

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