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Full-Text Articles in Civil Procedure
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Faculty Articles
Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.
In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …
Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew B. Lawrence
Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew B. Lawrence
Faculty Articles
Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.
This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …