Another View of the New FRCP Rules

I recently posted an item citing the IAALS’s work touting the benefits of the new amendments to the Federal Rules of Civil Procedure.

For a counterpoint, here’s a draft article by SMU Professor Elizabeth G. Thornburg, Cognitive Bias, the ‘Band of Experts,’ and the Anti-Litigation Narrative.  Here’s the abstract:

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect.  This article argues that the consistent pattern of discovery retrenchment is no accident.  Rather, a combination of forces is at work.  The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents.  In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse.  Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing.  This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.

Here’s a paragraph from the introduction:

Section II of this article will use the currently pending discovery rule amendments as a case in point, highlighting the ways in which the committees’ recommended changes will tend to favor the interests of large entities resisting discovery.  It will argue that the proposals are not reasonably calculated to accomplish their stated goals, thus supporting a fear that they are either purposely crafted to limit litigation or based on a mistaken view of federal litigation realities.  First, the proposals claim to be aimed at controlling excessive costs in the small percentage of large cases where they occur, but their proposals are unlikely to affect those cases.  The proposed amendments align poorly with the alleged problems, so that the explanation is a mismatch for the proposals.  Second, the committees’ expressed justifications for the changes rely heavily on opinion surveys while discounting more reliable closed-case data and the recommendation of the FJC’s own empirical experts.

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