Emory Law Journal

Volume 66Issue 1

The End of an Era? Federal Civil Procedure After the 2015 Amendments

Adam N. Steinman | 66 Emory L.J. 1 (2016)

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations. This Article argues that the amendments do not mandate a more restrictive approach to pleading or discovery. The final amendments—in light of their text, structure, and advisory committee notes—should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm that the amendment mechanism is unlikely to generate consequential changes to the Federal Rules. Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases.

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Strategic Immunity

Aaron L. Nielson & Christopher J. Walker | 66 Emory L.J. 55 (2016)

Empirical evidence shows that judges’ use of discretion follows certain trends that imply that judges consider factors besides the public interest when they exercise their discretion. These strategic decisions show that the Supreme Court may need to rethink the level of discretion or deference granted to the judges in certain doctrines such as qualified immunity. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public’s benefit. What the Court forgot, however, is that discretion can also have unintended consequences. This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations influencing a judge’s discretionary decision to clearly establish constitutional rights.

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