Abstract

For thirty years, the Federal Rules of Civil Procedure have relied on active Judicial case management to combat undue cost and delay The complaints about cost and delay have not gone away, but few blame the case-management rules for that Indeed, lawyers continue to view active judicial case management as one of the best ways of reducing cost and delay, and most of the reforms being urged today seek even greater Judicial case management for that reason But some think the rulemakers took a wrong turn thirty years ago and that each round of rulemaking that places more reliance on case management simply compounds the error This Article examines the role of case management in the current system, the criticisms of the case-management model, and the implications of those criticisms for the current reform agenda It is organized around five questions, each exploring a policy or practical issue associated with having a pretrial system that (1) has Just one set of rules for all cases, and (2) relies on active Judicial case management to ensure that the pretrial process in each case is just, speedy, and inexpensive The stakes are high If we, participants in the Judicial system, are to continue to rely on active Judicial case management to tailor the pretrial process to the needs of individual cases, then we must be sure that we understand the implications of doing so If we conclude that we do not like those implications, or that there are better ways to tailor the pretrial process, then we need to take a different path than the one we have traversed for the last thirty years But if we conclude that we have been on the right path, and that federal courts should push even farther down that path, then we must be prepared to meet the crossfire that we will encounter along the way

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