In the era just before the Federal Rules of Civil Procedure went into effect in 1938, federal civil litigation was a different animal.' Although Congress had created several private statutory causes of action before the 1930s,2 the federal civil docket prior to enactment of the Rules consisted primarily of diversity jurisdiction common law cases, labor injunctions and receiverships, and miscellaneous cases brought by the United States, including Prohibition-era "liquor cases" as well as internal revenue and food and drug enforcement. 3 Occasional exceptions notwithstanding, pre-New Deal federal courts hearing private claims functioned primarily as forums for the resolution of discrete, traditional disputes between litigating parties rather than instruments of social change and social control.
This view began to change with the rise of the Progressive and Legal Realism movements around the turn of the twentieth century. Legal realists challenged the traditional perspective with, among other things, their insights regarding the largely false distinction between substantive and procedural law. 4 Progressives agitated for large-scale social change and envisioned the federal civil court system as a potentially valuable weapon in their arsenal. From the 1930s forward, the federal civil docket-including suits between private partiesincreasingly reflected the ethos of both movements. Few today would challenge the claim that modern private federal litigation often serves a social welfare function both broader and deeper than simply offering eligible litigants an expeditious neutral forum for the resolution of private disputes.
But the fact that some private federal litigation serves a broader social purpose does not necessarily mean that any particular quantum of private litigation activity-past, current, or future-is optimal for society. Before we can optimize the social value of private civil litigation, we must address at least three foundational challenges. First, we must both define and quantify the social goals in question. Second, we must be able to measure the effects of both the existing system and any changes to that system with respect to our properly defined and quantified social goals. Finally, we must be able to reconcile our preferences not only internally but also with reference to the myriad potentially competing values and claims on scarce resources associated with a real-world society.
This Article explores whether we can answer each of these questions persuasively such that prescriptive recommendations based upon social benefit analysis should be given any particular weight. And at root, my analysis pertains with equal force to both "liberal" and "conservative" prescriptive analyses. In the abstract, at least, the landscape I describe should give both liberal and conservative would-be reformers pause, since the primary insight here is that the dynamics of civil litigation are complex and, well, dynamic, such that if static solutions are effective, they are often so only by accident. This is neither a "liberal" nor a "conservative" point.
Discovery and the Social Benefits of Private Litigation,
71 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss6/13