Pleading and the Dilemmas of Modern American Procedure.

In 2007 the Supreme Court decided two major cases involving standards for assessing the adequacy of complaints in federal civil actions, and it will decide a third this Term. Although seemingly concerned with technical requirements, these cases in fact implicate important issues of public policy, including access to court, compensation for injury, and norm enforcement. They afford a useful landscape in which to explore some of the dilemmas of modern American procedure. To that end, I enumerate certain foundational assumptions and operating principles of the post-1938 federal procedural system. I then show how these three cases illustrate the limits of, and costs created by, those foundational assumptions and operating principles and, more generally, the costs of the complex procedural system that we have created for the federal courts (and that many states have used as the model for their own systems). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]