Bone on the Normative Foundations of Litigation Reform

I just ran across a (relatively recent) article by Robert Bone entitled “Securing the Normative Foundations of Litigation Reform,” 86 B.U. L. Rev. 115 (2006) and available on SSRN.  Here is the abstract:

Federal court adjudication has changedin major ways over the past thirty years. Judges are more activelyinvolved in promoting settlements than ever before; alternative disputeresolution has moved center stage; and large-scale aggregation ofrelated lawsuits has become much more common. These changes raise deepand difficult questions that implicate core elements of civiladjudication. This symposium Essay explores some of the challengesthese developments pose for procedural law in the twenty-first century.At its most general level, the Essay calls for more rigorous normativework in civil procedure and for a better understanding of therelationship between procedure and substantive law. The springboard forthe Essay’s argument is Professor RobertCover’s famous 1975 article, For James Wm. Moore: Some Reflections on aReading of the Rules. A careful reading of Cover’s article provides aframework for making three main points: first, that a coherentnormative account of the procedure-substance relationship is essentialto crafting sound procedure; second, that Cover grasped the nature ofthat relationship more clearly than many proceduralists do today; andthird, that we would do well to follow Cover’s lead in working outanswers to the difficult procedural questions that twenty-first centuryjudges will confront. The Essay concludes by discussing someimplications for three critical areas of current and future reforminterest: settlement, aggregation, and the proper scope of judicialdiscretion.

ADL