Document Type
Article
Publication Date
1992
Publication Information
60 Geo. Wash. L. Rev. 1683 (1991-1992)
Abstract
Part I begins the inquiry by describing the practical and theoretical factors that have led various courts and commentators to label particular types of litigation "complex." Although all the definitions provide important data about the nature of complex litigation, none capture its full breadth. Thus, the task of the Article's next two Parts is to develop a formal and inclusive definition. Part II builds the theoretical framework for the definition by describing the form of adjudication and the positive assumptions of modern civil litigation.
Next, Part III demonstrates that complex litigation arises from the friction between the real-world problems outlined in Part I and the theoretical framework developed in Part II. Part III argues that all complex cases initially involve at least one of four different modes of complexity: the attorneys have difficulty in amassing, formulating, or presenting relevant information to the decisionmaker; the factfinder has difficulty in arriving at an acceptably rational decision; the remedy is difficult to implement; or there exist procedural and ethical impediments to joinder. The unifying attribute of these four modes is that the dispute can be resolved rationally only through the accretion to the federal judiciary of powers traditionally assumed by the other "actors" (parties, lawyers, jurors, and state courts) in the litigation enterprise. This attribute alone, however, constitutes an overbroad definition of complex litigation; such cases, although "complicated," are not truly complex. Complex litigation also contains a second fundamental attribute: The increase in judicial power needed to deal with these complications threatens to overrun the deep-seated assumption of modem civil litigation that similarly situated claims, parties, and legal theories should be treated in procedurally similar ways.
Thus understood, the form of complex litigation adumbrates some valid judicial solutions for the "big" case, and also suggests certain limitations on the scope of judicial power. At one level, this definition identifies certain "polycentric" cases that lie beyond the scope of legitimate adjudication. At a different level, this form isolates the key factors that must be considered in developing procedures for resolving complex cases. At still another level, the analysis suggests that the violence done to the egalitarian aspiration of modem procedure constitutes a powerful, and generally ignored, factor in the exercise of judicial power in the "big" case.
Part IV applies the insights gained from Part III to the future of civil procedure. Complex litigation stands in the crossroads of the thorniest issues in modern civil procedure: case management; trans-substantivism; adversarialism; the wisdom of equitably based procedural codes; the relationship between procedure and the law and economics movement; and the involvement of courts in politically charged controversies. Part IV demonstrates that these issues, and consequently the direction of procedural reform, can be understood only against the backdrop of the four categories of cases (routine, complicated, complex, and polycentric) developed from the definition of complex litigation.
Recommended Citation
Jay Tidmarsh,
Unattainable Justice: The Form of Complex Litigation and the Limits of Judicial Power,
60 Geo. Wash. L. Rev. 1683 (1991-1992).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/763
Comments
Reprinted with permission of George Washington Law Review.