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- Title
FAILED EXPERIMENT: TWOMBLY, IQBAL, AND WHY BROAD PRETRIAL DISCOVERY SHOULD BE FURTHER ELIMINATED.
- Authors
SHEPHERD, GEORGE
- Abstract
The provisions for broad discovery in the 1938 Federal Rules of Civil Procedure were a revolutionary experiment. The experiment began to fail from the beginning and has continued to fail. It has dramatically increased litigation's cost and pain, with few balancing benefits. Moreover, it has caused the profession to switch to hourly billing, causing an additional array of harms. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that. Although the decisions nominally addressed issues of pleading, their focus was on the flaws in the discovery process, and the decisions eliminate discovery in many cases. The decisions moved in the right direction, but did not go far enough. Instead, broad discovery should be eliminated for all cases.
- Subjects
DISCOVERY (Law); FEDERAL government; CIVIL procedure; ACTIONS &; defenses (Law); INVOICES; UNITED States. Supreme Court
- Publication
Indiana Law Review, 2016, Vol 49, Issue 2, p465
- ISSN
0090-4198
- Publication type
Article
- DOI
10.18060/4806.0072