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One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One change--the narrowing of the scope of discovery--could have a substantial adverse impact. Its presence on the roster of new amendments demonstrates the degree to which discovery has been blamed unfairly for society's--and the legal profession's--general disgust with litigation.

At the same time, the discovery process is never seriously rehabilitated but rather only adjusted in ways that fail to address its fundamental (but manageable) problems in the context of civil litigation. Simultaneously, a litigant's ability to obtain information significantly shrinks, favoring disputants who would provide less information. For the most part, this group is comprised of defendants, particularly products liability and statutory rights defendants. Rulemaking is viewed on the one hand as an apolitical procedure and on the other hand as a “disguised outcry for tort reform.”

Historically, trial judges in the United States have been vested with great discretion over almost all aspects of litigation--in particular, discovery. Since the Federal Rules of Civil Procedure were enacted in 1938, the default has been broad-based “relevant-to-the-subject-matter” discoverability, but judges have always had ample discretion to alter this rule. For much of the long-running debate about discovery, the prevailing view seemed to be that the wise discretion of judges would save us from the potential evils and abuses of discovery (and other litigation evils). Judges were viewed as Solomon-like, able to resolve discovery disputes by contextual decisionmaking on a case-by-case basis. By the 1990s, however, this school of thought seemed to have given way to the view that judges needed to be saved from their own discretion, which was not used frequently enough to limit discovery, or at least subject to a more restrictive default rule. This prong of the “trend,” if one can call it that, encompasses not only civil discovery, but also pleadings and motion papers, as well as criminal sentencing. Another--perhaps equally strong--modern trend continues to accord trial judges substantial discretion. This second trend continues the significant departure from default rules and reins in only highly idiosyncratic judicial discretion expressed through standing orders and midst-of-trial rulings.

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64 L. & Contemp. Probs. 197 (2001).