Jay Tidmarsh (Notre Dame Law School) has a new post on SSRN entitled: “Resolving Cases ‘On the Merits'” Denver University Law Review, Vol. 87, 2010. Here is an excerpt from the introduction at pp. 1-3:
“I start from the premise that our civil justice system is broken. In the weak sense of the word “broken,” I doubt that this claim will generate much controversy. The system isn‘t perfect. If it were, the distinguished group of judges, lawyers, and academics who are my colleagues in this collection of essays would have little to say. The history of Anglo-American procedure has been an unending effort to perfect the imperfect. Some of our efforts have made things worse, others have made them better. We have not yet come to the endpoint of procedural reform.
But I also mean that the American system is “broken” in a stronger, more controversial sense: our system is not sustainable in the long run. What particularly makes the system unsustainable is the lack of a cohe-rent theory that justifies its present structure. Our modern procedural system was built largely on the foundations of Roscoe Pound‘s vision. That vision, which was first implemented in the Federal Equity Rules in 1912 and then even more fully embraced in the Federal Rules of Civil Procedure in 1938, had (at least in retrospect) predictable and deep flaws that were baldly exposed after World War II as the legal market and the nature of American law evolved.Most of the efforts at procedural reform in the past thirty years have been attempts to walk away from, or tamp down the consequences of, Pound‘s belief in a simple, uniform, discretionary, “decide each case on its merits” approach to legal procedure. Although these efforts can loosely be associated with a law-and-economics perspective (in the sense that they are all attempts to rein in perceived excess costs in the present litigation system), it is fair to say that, while we are in the process of rejecting Pound‘s paradigm, we have yet to come up with a paradigm to replace it.
The fundamental reason for the endurance of Pound‘s paradigm is its elegant simplicity: it promises to resolve each claim and each issue on its factual and legal merit, without letting procedural technicalities or traps derail the decision. No other vision—for instance, “decide claims by the most efficient means”—captures this most basic aspiration of an ideal civil justice system. Like any aspiration, resolving cases “on the merits” is never perfectly achievable. Nevertheless, this paradigm has continued to battle all other policy objectives—such as achieving efficiency, fostering settlements, preventing jury confusion, and balancing party control against active judicial management—in debates over the architecture of our procedural rules.
This essay critically examines the meaning of the “on the merits” ideal, how the principle has permeated our procedural theory and architecture, and why, despite its allure and its centrality to our procedural system, we should replace the “on the merits” principle with a “fair outcome” principle that avoids the significant costs that the “on the merits” principle generates.” (citations omitted)