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Home > Journals > WMLR > Vol. 63 (2021-2022) > Iss. 2 (2021)

 

William & Mary Law Review

Abstract

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.

This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the most resourced parties survive while claims by less resourced parties do not. This leads to the Article’s second contribution, which concerns implications for policymakers. If policymakers understand that, despite the procedural rules or doctrines they adopt, the most powerful litigants will almost always find a way to survive, that understanding should change how policymakers approach their work. More specifically, this Article argues that policymakers should abandon their distorted survival-of-the-fittest approach to procedural reform and instead adopt an Endangered Claims Act approach. Using such an approach, policymakers’ choices would be guided by meritorious claim conservation. Thus, if a procedural change would lead to claim extinction, policymakers would not pursue that change, even if it would otherwise benefit powerful litigants. Finally, to best implement this methodology, policymakers—like scientists observing a species in the wild—will need better information about how claims fare in our civil justice system. Obtaining that information will require greater data-gathering resources and a commitment to, where possible, funneling claims into public courts where they can be better monitored.

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