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I would like to thank the Law Review for their generous invitation to participate in this symposium about the future of discovery in our civil justice system. Before starting, let [...]

D. The Modern Convergence of In Rem and In Personam Procedures Even if the previous two Sections were not persuasive, there is a further reason to question the idea that [...]

FEATURE CONTENTS INTRODUCTION I. IN REM VERSUS IN PERSONAM A. A Brief History of In Rem Forfeiture B. Might History Support In Rem Forfeiture Proceedings Only Where In Personam Proceedings [...], Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government's assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this Feature cautions originalists not to assume that they are unconstitutional. The Feature concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here: the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the [...]

The main goal of the court system is to differentiate between those who obeyed the law and those who did not. We describe a mechanism design framework that facilitates the characterization of a set of procedural mechanisms that would minimize the resources used to achieve this goal. This framework can also help to formulate and evaluate procedural rules, and to identify necessary and sufficient conditions for deciding disputes according to substantive law with minimal costs of litigation and delay. We illustrate our approach using three examples: fee-shifting rules, discovery rules, and third-party alternative dispute resolution mechanisms. (JEL: C 72, D 70, D 82, K 40, K 41)

The civil law reforms starting in the USA and exemplified by Lord Woolf's reform package (1995; 1996) in the U.K. are considered in the context of diminishing legal aid and pressure on judges to become case managers responsible for the economic performance of their courts. The reforms are being sold in a package that promises a fairer system for all, greater access, cheaper and quicker justice, less stress and greater party control. This move from the welfare state to a civil society is analysed using Habermas's critical theory in an effort to uncover and debate its assumptions. Specific recent changes in civil procedure in Queensland are referred to in this context.

INTRODUCTION The judicial role today is not what it used to be, or so we are told. The traditional judicial role was characterized by two guiding principles: Judges relied on [...], Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role. There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role. Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition--and proceed without the litigant input or legal criteria to which they are accustomed--that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.