Introduction, Issues in Civil Procedure: Advancing the Dialogue

The challenges facing the judiciary in this country have increased dramatically over the past two decades. Civil and criminal filings have grown at a pace that far outstrips any growth in the number of judges or judicial resources. The burden of case backlogs has become ponderous. The complexity of cases has increased, with the emergence of mass toxic torts as perhaps the most striking example. Multiple plaintiffs and defendants, sometimes in the hundreds or even thousands, coupled with highly technical scientific and engineering issues, have posed new demands on the management skills and intellectual resources of the judiciary. At the same time, the litigation process has been the subject of unprecedented scrutiny. Though our civil justice system continues to serve as a central institution of social control, research has produced compelling empirical evidence of inefficiencies and extraordinary costs. This new information represents considerable progress toward a better understanding of the system, but it has substantially heightened public concern with its inner workings, increasing pressure on the judiciary to find and implement reforms

Foreword, Modern Civil Procedure: Issues in Controversy

Despite the seemingly universal introduction of social science methods of instruction, the staples of legal education today differ little from those of many decades ago. Even the most sophisticated modern lawyer continues to remember and understand the basic principles of civil law in terms of rules propounded to resolve discrete disputes between two single parties. If asked to name the foundations of our civil law, the lawyer today, like the lawyer of the 1920s, would almost certainly list Pennoyer v. Neff, Hadley v. Baxendale, Brown v. Kendall, and, perhaps, Palsgraf v. Long Island R.R. Company. These cases are recognized today as possessing a certain quaintness, but they remain the building blocks from which our conceptions of civil liability derive. Regrettably, this conception of civil law is becoming increasingly anachronistic. The caseload of the modern civil judge is less likely to be dominated by an action involving an attempt to collect on a note against land (Pennoyer), or damages for delay in delivery (Hadley), or for suffering a hit from a stick (Brown) or a scale (Palsgraf), than by an action involving thejoinder of multiple parties with complex third-party liability claims asserting a causative link that requires complicated scientific understanding. However deeply they are revered, our ancient cases provide no more than a starting point for the unravelling of the difficult issues that are progressively overwhelming modern civil litigation