Animating Civil Procedure

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In the introduction to the second edition of Animating Civil Procedure, Professor Vitiello explains why he believes that a new edition of the book makes sense. In some areas, his assessment of the Court's efforts to close the courthouse door through procedural rulings was too pessimistic. For example, the Court has backed away from its unwarranted interpretation of F.R.C.P. 8(a)(2), governing pleading. Elsewhere, Vitiello argues that the Court continues to use procedural devices to close the courthouse door and to advance specific agendas. Notably, the new edition includes a chapter on the shadow docket, which has had profound impacts on substantive rights.

Other chapters update developments described in the first edition. For example, in the chapter on discovery, the author explores how the 2015 amendment to Rule 26(b)(1), concerning proportionality as a reason to limit discovery, has been used by Republican-appointed judges to limit injured plaintiffs' ability to get full discovery from corporate defendants. Other chapters describe the Court's continued efforts to limit class actions and to expand the enforcement of arbitration clauses even when such holdings impair important substantive policies.

Under the current administration, moving legislation through Congress may become more difficult. Vitiello argues that we are likely to see judicial decisions that add obstacles to accessing the court, especially when injured plaintiffs take on large corporate interests.

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