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An Old Judicial Role for a New Litigation Era |
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Jonathan T. Molot [View as PDF]
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113 Yale L.J. 27 (2003)
Because litigation has changed so dramatically in the last half
century, scholars tend to view contemporary civil procedure as raising
new problems that require new solutions. We have overlooked that
many of these problems can be explained, and even resolved, using an
age-old judicial role.
There are two contexts in particular in which scholars have
identified problems with judicial practices, but have been unable to
agree on solutions. One is pretrial practice, where controversy
abounds over the management strategies judges use to cope with
overzealous litigants and overcrowded dockets. The other is class
action litigation, where debate focuses on judicial review of proposed
settlements and the judge's duty to protect absent class members.
Although scholars have explored the tradeoffs posed by current
practices and proposed reforms in both areas, they have lacked a
framework with which to connect these problems or build a consensus
for reform. This Article suggests that the framework we need has been
available all along. Our best hope of understanding, and ultimately
resolving, these controversies lies in a model of judging that prevailed
for centuries and was captured by Lon Fuller in the 1950s. Although
scholars rarely invoke tradition expressly, their debates over pretrial
practice and class action litigation often boil down to a debate over
the value and vitality of the traditional judicial role.
Fuller identified two core elements of the traditional judicial
role: Judges must rely on parties to frame disputes and on legal
standards to help them resolve disputes. Scholars have overlooked
that judges today sometimes respect these two characteristics and
sometimes do not, and that it is precisely where judges stray furthest
from tradition--and proceed without the litigant input or legal criteria
to which they are accustomed--that judicial conduct triggers
controversy. There are powerful reasons why judges should remain
faithful to their traditional role even as they update it to respond to
new challenges. Judges should do so not for tradition's sake, but
rather because their traditional role reflects their core institutional
competence, their place in the constitutional structure, and the
considered judgment of two centuries of judges who faced problems
surprisingly similar to those that judges confront today. This Article
explores the institutional, constitutional, and historical underpinnings
of the traditional judicial role, highlighting overlooked parallels
between the new problems judges face in pretrial practice and class
action litigation today and old ones that judges confronted, and
largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.
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