Resolving Cases on the Merits

My task, as I understand it, is to select a single rule of procedure and explain why (and how) it must be reformed in order to build a better civil justice system in the twenty-first century. Let me say at the outset that I intend to shirk this responsibility. My principal reason is the integrated nature of our rules of procedure. All the rules—or at least all the rules worth talking about in the context of serious reform to American civil justice—are interwoven. As with a spider’s web, a tug on a single rule can collapse the entire structure. In considering reform, therefore, it is more important to ask what kind of structure we ideally want to build and what constitutional, historical, political, and economic realities constrain this ideal. The details of shaping individual rules to fit the structure are a second-order consideration.