The Fourth Era of American Civil Procedure

Stephen Subrin
Thomas Main

University of Pennsylvania Law Review, Vol. 162, No. 7, pp. 1839 - 1895 (2014)


Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief. We agree that something has fundamentally changed. In fact, we believe that we are in the midst of what should be labeled a new era - the fourth in the history of American civil procedure. The first three eras are rather conventional: the first era began with the country’s founding; the second era began in the middle of the nineteenth century with the introduction of code pleading; and the third era commenced in 1938 with the Federal Rules of Civil Procedure. In Part I of this article, we defend the thesis that we are now in a distinct, fourth era. This era is not defined, for the most part, by the introduction of a new set of formal procedural rules; indeed, the formal procedural rules of the third era are largely intact. But if the core values of those rules have been eviscerated by judicial decisions, interred by antipathy, and eulogized by none other than Wright and Miller, we should acknowledge that the third era has, in fact, yielded to a fourth. In Parts II, III, and IV, respectively, we untangle the many forces that conspired to produce this fourth era, offer an unflattering appraisal of it, and begin to plot a strategy for escaping its clutches.